[§1. Acquiescence will validate an illegal constitution.]

{214} ONE further matter deserves brief attention, namely, the question as to what gives validity to constitutional changes adopted by the convention method. A mere lapse of time has been held to validate amendments adopted in violation of provisions of the existing constitution. Thus in 1894 the Supreme Court of Colorado refused to inquire into the validity of an amendment which had been in operation for ten years.1 In 1903 the Supreme Court of Nebraska refused to inquire into the validity of an amendment adopted sixteen years before.2 Dodd, however, says:

Several expressions in the cases discussed above would raise the inference that an amendment might be secure from judicial attack simply because it had been long acquiesced in and uncontested. This view can hardly be a proper one. In the cases above, acquiescence was coupled with the fact that the amendments made essential changes in governmental organization, and such changes having been accomplished, were regarded as making the question a political one. But an amendment which did not make an essential change in the governmental organization — one the annulling of which would not disarrange the governmental machinery — may, it would seem, be attacked as invalid at any time, just as a law acted upon perhaps for years as valid, may be then held unconstitutional by the court. Mere lapse of time raises no presumption in favor of the validity of either a law or amendment, but long acquiescence without contesting its validity may be considered as having weight in determining the question of constitutionality.3

Recently in North Dakota a mere custom of the Supreme Court, favorable to the tenure of the Judges themselves, was {215} held to have become ingrafted on to the constitution by mere lapse of time and acquiescence.4

In the case in which the Virginia convention of 1901 promulgated a constitution without complying with the requirement that it submit this constitution to the people, the court held:

The Constitution having been thus acknowledged and accepted by the officers administering the government and by the people of the State, and being, as a matter of fact, in force throughout the State, and there being no government in existence under the constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question ... is the only rightful, valid, and existing Constitution of this State, and that to it all the citizens of Virginia owe their obedience and loyal allegiance.5

Dodd says:

Another reason why courts would hesitate to pronounce invalid a constitution which was already in operation is that a court acting under such constitution would, in rendering a decision of this character, necessarily pronounce against its own competence as a court. A court organized under a government, even though that government be revolutionary in character, has no greater validity than the government under which it acts, and would hardly destroy itself by holding that government to be invalid. This view was first presented by a dictum of Chief Justice Taney in Luther v. Borden, and may be said to be a sound one: "And if a state court could enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial determination upon the question it undertook to try."6

And he adds that

Courts must pursue a more liberal policy in passing upon the acts of a convention, especially after they have been approved by {216} the people, than it has [sic] pursued in interpreting the constitutional restrictions placed upon the legislative power to propose amendments.7

[§2. Acquiescence will validate extraconstitutional changes.]

If lapse of time and acquiescence by the people and government will give validity to constitutional changes made under the authority of the constitution, then a fortiori, as Dodd suggests, with respect to changes made by extraconstitutional means.

If the reconvening of the Kentucky convention of 1890 was valid, although unauthorized by the convention act, and the constitution promulgated by it became the constitution of the State,8 this rather upsets a pretty little theory which might otherwise be deduced and which has been deduced by some writers on the subject. It has been said that any irregularities on the part of either the legislature or the convention are cured when the people accept the changed constitution at a regular election. In other words, that the object of the whole procedure is to submit amendments to the people, and that it matters not how legally this is done, so long as it is done. Judge Morton may have had this theory in mind when he said in the Massachusetts convention of 1853:

Whether we sit legally or illegally, whether we are here by right or by usurpation, if the people choose to adopt what we submit to them, it then becomes authority — not because it comes from a legally constituted body, but because the people choose to adopt it.9

But in the Kentucky case, there was no such curing submission to popular vote, because in that case the unauthorized act was done by the convention after, rather than before, the special election.

Thus we are forced to fall back on the theory that an amendment obtained by the convention method derives its validity not from the passage of the convention act by the legislature or its ratification by the voters, not from the election of the delegates to the convention, not from any action by the convention itself, and not even from the acceptance of the amendments by popular vote; but rather from the mere acquiescence in the {217} result on the part of the old government and of the people at large.

[§3. Acquiescence is constructive ratification.]

Thus amendment by extraconstitutional convention rests not on the submission of the amendment to the people, but rather on the submission to the amendment by the people.

The Massachusetts Supreme Court in 1833 alluded to this "sanction by the assent of the people."10

And it is clear that if President Tyler had not come to the rescue of the landlords of Rhode Island in 1841, by suppressing the People's Constitution with Federal troops,11 Thomas Wilson Dorr would have been seated as governor, and his constitution, unlawful though its inception, would have become the supreme law of Rhode Island through being sanctioned by the assent of the people. This was a purely spontaneous convention, but so also were the Union governments of Virginia and West Virginia and the many successful conventions of the Revolutionary War.

The following quotations support the doctrine of acquiescence, set forth in this chapter:

Such irregularly enacted changes may, however, be ratified by the subsequent acquiescence of the People, as well as by their formal vote; and any act of the existing Government in recognition of such irregular constitutional changes should be regarded as such acquiescence and ratification by the people.12

If that instrument was valid, as the supreme law, it was because the people had tacitly expressed their assent to it by electing officers under it, and by acquiescing in its provisions.13

It will be inferred from the foregoing that the acquiescence which may give validity to an excessive exercise of power by a Convention must involve more than a mere affirmative vote of the qualified electors. These have no power to authorize or to condone a breach of constitutional duty; they can neither make nor repeal nor suspend the operation of a law. They are not "the people" in any case where they act without law or beyond the law. The acquiescence which ratifies or validates an act otherwise void is that of no single department or functionary, save as that department or functionary is supported by the consenting judgment of {218} the sovereign whose voice it speaks. It is the acquiescence of the sovereign community, clearly manifest and continuous, that is alone effectual. As to the particular acts which are to manifest that judgment, or the length of time over which they should extend, no precise rule can be given. The most that can be said is, that when the sovereign body has clearly moved, and that movement gives evidence of irresistible force and of continuance, the various systems of officials, constituting the existing government, must heed and bow to it, or go down before it. Acquiescence, though silent and scarcely visible, is such a movement.14

The convention or congress which in its broadest sense made that constitution was assembled without sanction of law. It was composed of delegates elected at the instance of a committee of citizens ... this body proceeded to frame and adopt a constitution, which was not submitted to the people for ratification ... Nevertheless, from the time that instrument was promulgated until 1844, it was the fundamental instrument of government of this state, submitted to by the legislative, executive and judicial departments of the government, and also by the people of this state, as having the force of a constitution.15

[§4. Refusal to call new convention is ratification of old constitution.]

It has even been asserted that a popular refusal to call a new convention is a ratification of the old constitution:

By the Act. No. 33 of an Extraordinary Session of the General Assembly, of this year, a proposition to hold a constitutional convention and adopt a new Constitution was submitted to the people, and was rejected by the electors voting in the election called for that purpose last August. This, in my humble opinion, was an express ratification of the Constitution of 1913.16

In spite of all the foregoing, we must remember that acquiescence does not validate the means, but merely the result. Thus Jameson says:

Before closing the discussion of the principles regulating the legitimate call of Constitutional Conventions, one remark is necessary to guard against misconstruction. A Constitution, or an amendment to a Constitution, originating in a Convention justly stigmatized as illegitimate, may, notwithstanding its origin, become valid as a fundamental law. This may happen {219} ... by the mere acquiescence of the sovereign society. Such a ratification of the supposed Constitution or amendment would not, however, legitimate the body from whom the Constitution or amendment proceeded. That no power human or divine could do, because, by the hypothesis, such body was in its origin illegitimate ... The ratification by the acquiescence of the sovereign, would be a direct exercise of sovereign power, illegal doubtless, but yet standing out prominently as a fact, as such finding in the original overwhelming power of the sovereign a practical justification, which it would be folly to gainsay.17

On the whole, we may conclude that acquiescence will validate an illegal constitution, and nonacquiescence will invalidate a legal constitution. Thus we revert in the end to fundamental principles, particularly the principle that all governments derive their just powers from the consent of the governed, rather than from any compliance with legal formalities.

1. Nesbit v. People (1894), 19 Col. 441, 455.

2. Weston v. Ryan (1903), 70 Neb. 211, 218.

3. Dodd, pp. 225-226.

4. Linde v. Robinson (1917), 160 N. W. 512.

5. Taylor v. Commonwealth (1903), 101 Va. 829, 831. And cf. Miller v. Johnson (1892), 92 Ky. 589.

6. Dodd. pp. 101-102. Cf. Brittle v. People (1873), 2 Neb. 198, 214; Loomis v. Jackson (1873), 6 W. Va. 613, 708; Koehler v. Hill (1883), 60 la. 543, 608, 614; Luther v. Borden (1849), 7 How. 1, 40; "Trial of Dorr," p. 38. See pp. 167-158, supra.

7. Dodd, p. 103.

8. See p. 183, supra.

9. Deb. Mass. Conv. 1853, Vol. I, p. 74.

10. Opinion of Justices (1833), 6 Cush. 573.

11. See [Ch. XIV §10] pp. 21, 22, supra.

12. Braxton, VII "Va. Law Reg.," 79, 96-97.

13. Jameson, p. 519.

14. Jameson, pp 541-542.

15. Bott v Secy. of State (1898), 62 N. J. L. 107, 118-119.

16. Foley v. Dem. Com. (1915), 70 So. 104, 105.

17. Jameson, p. 112.

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