Hoar: Constitutional Conventions: Chapter 3

CHAPTER III

ANALYSIS OF QUESTIONS

[§1. Definitions.]

{30} IN the light of the historical development of constitutional conventions and of the fundamental principles already discussed, we are now prepared to analyze the various questions, for the object of answering which this book is written.

First, let us observe the French proverb, "Definissons nos termes!"

The term "constitutional convention" is not felicitous, for the word "constitutional" may mean to some people "authorized by the constitution," and to others merely "relating to the constitution." Hence the apparent anomaly of the phrase "an unconstitutional constitutional convention." Therefore, a "constitutional convention," as used in this book, may be defined as "a convention employed as a step toward framing or revising a constitution." To avoid ambiguity, such conventions will nearly always be referred to merely as "conventions," omitting the word "constitutional." To the same end, the word "constitutional" will never be used immediately preceding the word "convention" to indicate the constitutionality of the convention; but rather some circumlocution will be employed.

Even when used to refer to the constitutionality of the convention, the terms "constitutional" and "unconstitutional" present an ambiguity. "Constitutional," as we have seen in the preceding chapter, may refer either to something authorized by the constitution, or to something valid through not being prohibited by the constitution, or even to something which is legal because beyond the control of the constitution. "Unconstitutional" may mean the reverse of any of those three things. As used in this book, the term "constitutional" will be used only to apply to matters over which the constitution has control, and which in the exercise of that control it either authorizes or omits to prohibit.

{31} A circumlocution will be used, whenever possible, in place of the word "submission"; for this word might equally well mean "acquiescence in" or "reference to."

[§2. Are popular conventions revolutionary?]

"Revolution," as applied to conventions, is a word upon which there can be no possibility of agreement. Jameson, Dodd, Braxton, and others insist that popular conventions are not revolutionary, and reserve the term "revolution" for spontaneous conventions alone.

Dodd says:

The convention ... is in no sense a revolutionary ... body.¹

Braxton says:

A constitutional convention is a normal and legal institution, ... it involves neither revolution nor a dissolution of the ordinary government, even in theory.

In the earlier days existing social systems did not contemplate the legal possibility of, and therefore made no provision for, any fundamental change in their constitutions: hence, the only means of effecting such change was, by revolution, to overthrow the existing government, and, by force, either to engraft upon it the desired changes, or else to substitute an entirely new system in its place. But, as the science of government became better understood, and the great doctrine of the right (not merely the power) of the people to change their government, was promulgated, it was found that it was not necessary to resort to revolution in order to change or modify government, but that such changes or modifications might be made as peacefully, as orderly and as legally as any ordinary function of government could be exercised. From the idea involved in this doctrine grew the modern Constitutional Convention, an institution so far unconnected and inconsistent with revolution, either peaceful or violent, that its whole purpose and raison d'etre is to prevent, and do away with, the necessity of excuse for revolution — in fact, it might properly be called the "Anti-Revolutionary Convention."²

But it is to be remembered that Dodd and Braxton wrote in States (Illinois and Virginia respectively) where conventions are held under the authority of constitutions. Accordingly their views as to all conventions are colored by the fact that the {32} conventions with which they have had to deal have been of the authorized variety. Similarly the present author's point of view may be colored by the fact that conventions in Massachusetts are generally recognized as being revolutionary. The Supreme Court of Pennsylvania says:

It is not pretended that the late convention sat as a revolutionary body.³

If they are correct in their theory that conventions, sanctioned by the inalienable right of the people and assisted by the existing legislature, are not revolutionary, then, by their test, the secession conventions of the Southern States were not revolutionary, nor is even the coming constitutional convention in Russia.

By "revolution" they probably mean "revolution by violence." But violence or lack of violence ought not to be the test in determining the fundamental nature of a governmental overturn.

In the words of Reverend William B. Greene:

It is not necessary, in order that there be a revolution, that there should be blood shed, powder burned, and other attendants of war displayed. A revolution may take place peaceably, and if the right is once recognized in a country, it should take place peaceably, because in the recognition of that right, is also the recognition of the duty of obedience upon the part of the Government.⁴

Walker uses the word "revolution" in the same sense when he says:

But it is needless to enlarge upon the general right of revolution. It must of necessity exist, whenever a majority desire it, even though the existing government should be in terms made perpetual, as some of the provisions in our constitutions are declared to be.⁵

Gen. Benjamin F. Butler, leader of the majority in the Massachusetts convention of 1853, expressed the sentiments of his party when he said in that body:

{33} Are we not now engaged in a revolution — a peaceful revolution by the ballot-box, and not by the sword and the bayonet? Sir, these are revolutionary times, so far as the Government is concerned. We are assembled to revolutionize, so far as it may be judged expedient, the organic structure of our present Constitution. I look upon this whole proceeding of calling a convention as a mode of revolution by which we may peaceably accomplish that which in other countries is attained by the sword, and by force. Here, through the medium of the ballot-box, the people take to themselves the supreme control of the whole machinery of the government.⁶

However, as already said, it will be impossible to agree on this term. Dispute would be profitless. Accordingly, let us agree that, for the purposes of this book, the author will use the word "revolution" to mean any overturn unauthorized by the constitution.

The New York Supreme Court nearly reaches this definition, when it says:

A change in the fundamental law, when not made in the form which that law has prescribed, must always be a work of the utmost delicacy. Under any other form of government than our own, it could amount to nothing less than a revolution.⁷

They might have added, "And under ours it is revolutionary, even though not a revolution."

And the Rhode Island Supreme Court, although denying the lawfulness of conventions, says that if there is any such law, it is a law of revolutionary rather than of constitutional change.⁸

Ruling Case Law says:

An attempt by the majority to change the fundamental law in violation of the self-imposed restrictions is unconstitutional and revolutionary.⁹

[§3. Sorts of constitution conventions.]

Having disposed of the foregoing definitions, we ought next to proceed to classify the various sorts of constitution conventions. Now, the convention is only one of the many means for altering the form of government.

{34} We have seen, during the discussion of fundamental principles in the last chapter, that changes of government may be either authorized, popular, or spontaneous.¹⁰

Among the authorized methods are: amendment by legislative action, amendment by popular vote after submission by the legislature, amendment by the initiative, and amendment by convention.

With respect to a popular uprising, the convention is apparently the only method whereby the form of government can be legally changed in disregard of constituted authority; although if the question of amendment could get on to the ballot at a regular election in some other unauthorized way, the action of the electors in ratifying it would probably be just as binding.

Spontaneous methods of change of government all, in the last analysis, depend upon force for their success; therefore it is immaterial in which of the many possible spontaneous ways a constitution is promulgated, if it be later established by force. The force is all that is material. Success succeeds, and failure fails; no other difference is apparent between successful and unsuccessful spontaneous conventions.

Thus each of the three classes of changes in constitutions — to wit, authorized, popular, and spontaneous — may take the form of a convention; and accordingly we have as the three sorts of conventions to be considered in this book, the authorized convention, the popular convention, and the spontaneous convention.

The spontaneous convention we may disregard, as it is bound by no law and derives whatever force it may have from subsequent events, rather than from the way in which it is either constituted or conducted. Spontaneous conventions are without the form of law and, therefore, cannot possibly provide us with useful precedents.

This book aims to discuss the nature, powers, and limitations of both authorized and popular conventions. The nature of authorized conventions depends largely upon the source of the authority. But popular conventions all probably derive their authority from the people, although this is disputed by Jameson, who asserts that they derive their authority from the legislature. A whole chapter will be devoted to discussing this point of {35} disagreement.¹¹ The question of whether the legislature calls the convention leads us to the question of whether the legislature can call itself a convention, to which question a chapter will be devoted.¹²

The question naturally arises in connection with popular conventions as to whether, inasmuch as they are not authorized by the constitution, they are not thereby rendered unconstitutional and void. A chapter will be devoted to this point also.¹³

[§4. Relation of conventions to other departments of government.]

Aside from the question of the source of authority of the two sorts of conventions, there are the questions of their relation to the other departments of government, the relative powers of the various departments, and the extent to which any of the departments can interfere with the convention or the convention interfere with any of the departments.

Accordingly, inter alia, we shall consider whether the State executive has power to interfere with both sorts of convention under various provisions or lack of provisions in the State constitutions, and also whether the Federal executive has power to intervene in determining the legality of convention action in one of the States. One chapter will be devoted to these considerations.¹⁴

Next as to the legislative department. Judge Jameson's entire work on constitutional conventions was written with the view to proving the supremacy of the legislative branch over the convention.¹⁵ For the purposes of his discussion, he assumed that all conventions, whether called at the one extreme under the provisions of the State constitution, or at the other by a direct vote of the people, were in either event the creatures of the legislature and hence subject to its control. Also, he treated the question of the power of the legislature to amend the statute calling a convention, as being merely a question of the right of the legislature to control the convention; whereas in reality it involves three questions: i. e. the power of the legislature, the source of the statute, and whether the legislature can amend an act passed by the people.

The question, here involved, of the power of the legislature, is the same question that is involved in considering whether the {36} legislature can restrict a convention by the terms of the original convention act.

The question of who enacts the convention act is the same question as that already referred to, relating to the source of authority of popular conventions. The question as to whether the legislature can amend a statute passed by the people in their sovereign capacity is self-explanatory.

These three questions last referred to are each treated in a separate chapter.¹⁶

The restricting of the convention by the original convention act, if it be submitted to the people, instead of being, as we have just supposed, enacted by the legislature alone, involves the question of the power of the people to restrict the convention. This same question is involved when we discuss whether constituents have a right to give binding instructions to a convention delegate. Popular control of conventions is the subject of one of the chapters.¹⁷

[§5. Convention becomes sovereign.]

In contradistinction to the idea of legislative or even popular control, is the theory that the convention, once launched, becomes the sovereign, and remains supreme so long as it is in existence. Conventions, claiming this degree of sovereignty, have exercised extraordinary powers, including the enactment of legislation and the removal of executive officers. They have even tried to amend the convention act by which they themselves were created. Extraordinary powers claimed by conventions, including interference with the legislative and executive branches, form the contents of one chapter.¹⁸

Two questions closely related to each other are: whether the constitution applies to conventions, and whether the courts will interfere with conventions. Some people might assume that these are the same question; but it is clear that the constitution may perhaps apply, and yet that the courts may in some cases refuse to interfere with the convention, on the ground that it is a coordinate government body, and is therefore the judge of its own constitutional limitations; in other words, that the questions involved are political rather than legal. On the other hand, the courts may interfere with a convention, on grounds {37} not furnished by the constitution. Then, too, a court might also render assistance to a convention in enforcing its rights and powers. Accordingly, the author has tried to divide those somewhat interrelated questions into two chapters, one dealing with judicial intervention,¹⁹ and the other dealing with the question as to whether the constitution applies to conventions.²⁰

It is obvious that as all bodies have some incidental powers beyond the strict duties of such bodies, so also the convention must have some incidental powers which do not strictly relate to the framing of a constitution. These are discussed in a separate chapter, which deals with the internal control of the convention by itself; and to this chapter the author has added some words on the privileges of the individual members.²¹

Not only is the legal status of the convention important, but also the legal status of the individual delegates. Are they public officers, and should they take an oath to support the constitution which they are engaged in overturning? Ought they to take any oath of office? These questions form the subject matter of another chapter, on the status of delegates.²²

The questions of the need and method of submission of amendments by the convention to the electorate, are incidentally touched upon under almost every phase of the subject of constitutional conventions. There is involved the applicability of constitutional provisions, the binding force of the convention act, the power of the legislature to amend that act, and the right of judicial, executive, or popular interference. Yet the questions of the need and method of submission of the amendments are so important in themselves that the authorities and precedents have been collected in one chapter.²³

A final matter for consideration is the doctrine that the validity and effect of all constitutional changes depends, in the last analysis, upon "getting away with it"; in other words, on the people and the existing government accepting and acquiescing in the change. One chapter is devoted to this doctrine of acquiescence.²⁴

The concluding chapter of the book is a summary of the answers to the questions presented and analyzed in this chapter.²⁵

1. Dodd, p. 72.

2. VII "Va. Law Beg.," 79, 96, 81.

3. Wells v. Bain (1872), 75 Pa. No. 39, 48.

4. Deb. Mass. Conv. of 1853, I, 129.

5. Walker. "American Law" (11 ed.), p. 231.

6. Deb. Mass. Conv. of 1853, I, 78-79.

7. Journal, 69th N. Y. Assembly, p. 920.

8. Opinion of Justices (1883), 14 B. I. 649, 654.

9. 6 R. C. L., § 16.

10. See [Ch. 2 § 3] p. 15, supra.

11. Chapter V, infra.