from calling a convention (a case of only theoretical interest), and it acts upon authority derived from general implication alone, what direct part are the people to play in the proceeding? May the referendum respecting the expediency of issuing the call be dispensed with by the legislature? The weight of authority is distinctly on the side of a submission of this question to the people. The opinion of the New York Council of Revision, in 1820, which is cited so frequently, that body, clothed with a power later conferred in nearly all our States upon the Governor alone, without whose assent to a bill, none could become a law except by a two-thirds vote over the veto,-is against a convention assembled at the sole instance of the legislature. The New York Constitution of 1777, which it was proposed should be changed, contained no word concerning the method of calling a convention, nor did it seem to contemplate the case arising when such a body would need to be convened. The Council, nevertheless, unhesitatingly declared that it was the duty of the legislature to submit the question, just as it was its prerogative in general to set the machinery in motion for a convention to assemble, despite the Constitution's silence in reference to that larger point. Because the legislature had failed to provide for a poll of the people, the Council had vetoed the bill, and the former acting in pursuance of better advice, promptly passed a measure to refer the matter to the electors of the State.

Doubtless it is within the power of the legislature, when the constitution contains no specific directions to the contrary, to call a convention, without first acquainting itself with the sense of the people on this subject. Even in those States in which the constitution is not wholly silent on the point, and a method is prescribed for calling a convention, though without a definite command as to the submission of the question to popular vote, the legislature may undoubtedly omit this latter feature of the process. Perhaps there is here an added implication that the plebiscite is unnecessary, but lacking the constitutional mandate to dispense with the vote,

the legislature may, of course, require the popular sanction, and if it desires to keep itself in line with all our historical tendencies, it will make no effort to evade what must be considered to be its manifest duty in the case. For instance, the Constitution of Georgia declares that "no convention of the people shall be called by the General Assembly to revise, amend, or change this Constitution, unless by the concurrence of two-thirds of all the members of each house of the General Assembly "25 It contains no command to submit, nor prohibition from submitting to the electors by way of the referendum, the question of the expediency of the call, and without a doubt, the legislature can refer the subject to them or not, at its own pleasure.2

26

Of one thing there seems to be some certainty, if our practice is closely studied and the lessons which it teaches are rightly viewed and considered, and it is this-that the people should be directly consulted at some stage in the process of constitutional change. One or other of the two referenda, either the preliminary vote to decide as to the expediency of calling the convention, or the vote upon the acceptance or rejection of the whole constitution after the convention has framed it, should be taken.27 If we look at those States in which constitutions have recently been adopted without a reference of the instruments to popular vote, Mississippi, South Carolina, Delaware, Kentucky (in part), and Louisiana, there is but one case, that of Mississippi in which the legislature, or the legislature and convention acting together, took the matter wholly out of the people's hands, and

25 Constitution of 1877, art. xiii, sec. 1, par. 2.

20 A usual form in which to submit this subject, since more modern ballot systems have been introduced, is as follows: "For the [or a] Convention ", 'Against the [or al Convention ", as in California and Tennessee; "Shall there be a Constitutional Convention-Yes", or No", a space for the voter's mark being left after either word, as in Minnesota; "For a general revision of the Constitution-Yes" or For a general revision of the Constitution-No", as in Michigan; "Constitutional Convention-Yes" or Constitutional ConventionNo", as in Ohio.

27 Cf. Jameson, op. cit., p. 494.

withdrew from them all part in the proceedings, both before and after the convention met. It is true that in South Carolina, Kentucky and Delaware, the old Constitutions required that conventions should be called only after a polling of the people, and in Kentucky the vote had to be taken on two occasio ns, but the fact remains that it is now only in the rarest instance that all our agents which co-operate to this end, fail us, and a constitution is added to the American collection, without the people having said by yea or nay, somehow, at sometime, whether or not they are ready to make this change in their organic scheme of government.

CHAPTER VI

THE AMENDMENT OF CONSTITUTIONS BY THE LEGISLATIVE METHOD

ANOTHER method of amending the constitution, the legislative method, remains to be specifically considered. It was the practice in England, whence we got so much that is valuable in our political forms, to receive constitutional as well as statutory law from Parliament or the legislature. We had introduced Montesquieu's trinity of English agents, the legislative, executive and judicial departments of government, each balanced against and checking the two others. But we were to go farther, and bring upon the scene a fourth brake upon the wheel, the convention, differentiating constitutional and ordinary law, not only in its intrinsic character, but as well in respect of the source from which it was derived. The legislature for a time in this country, was almost entirely without power in the matter of constitutional law-making, except as the agent to call the convention together. In those early cases in which the legislature itself attempted to act as a convention, the constitutions were considered to have been irregularly adopted, and therefore invalid. It came to be pretty generally understood that what the legislature was not competent to make, it also was not a suitable authority to break down or change. If experience should later show that amendment was needed, it was plainly stated, or fairly implied in the constitution, that the mode at hand was to call another convention. The Constitutions of 1776 in Delaware and Maryland, indeed, gave to the legislature rather general powers to change those instruments under certain safeguards, calculated to prevent hasty and ill

1 Ante, p. 74.

considered action. In the Maryland Constitution, it was specified "that this form of government and the Declaration of Rights, and no part thereof shall be altered, changed or abolished, unless a bill so to alter, change or abolish the same shall pass the General Assembly, and be published at least three months before a new election, and shall be confirmed by the General Assembly after a new election of delegates, in the first session after such new election ". Here was a plan for amendment by simple majority vote of two successive legislatures, and in lieu of the referendum there was introduced the device of publishing the proposals for the consideration of the people prior to the election of the members of the General Assembly which should pass upon them the second time.2

In Delaware the Constitution of 1776 prescribed, with the exception of some cases not to the purpose here, that no part of the Constitution should ever be "altered, changed or diminished without the consent of five parts in seven of the Assembly, and seven members of the Legislative Council ".3 Thus of the Constitutions of the Revolutionary time in those of two of the original States, the legislature was created the agent for amending the Constitution. In the Constitutions of New Jersey, New York, North Carolina and Virginia, there were no provisions on this subject. In New Hampshire, Massachusetts and Georgia, the convention method was adopted, as it was also in Pennsylvania with the addition of that odd feature, the Council of Censors. As silence is an inference in favor of the convention, there were then but two States of the eleven (the other two needed to make up the "original thirteen " being Connecticut and Rhode Island, and they retained their English charters) which held the legislature to be competent in amendment, even with respect

The example of South Carolina in 1778 may be disallowed, for the Supreme Court of that State decided that as the Constitutions of 1776 and 1778 had both been framed by the legislature, the latter could at its own pleasure change them again.