CHAPTER V.

POPULAR CO-OPERATION IN THE ADOPTION AND AMENDMENT OF CONSTITUTIONS.

It is a remarkable fact of American history that nearly all of our fundamental political establishments have been made by contract or compact. Prior to the colonization of America the notion that government was the result of compact among the governed had its foundation in theory only. To be sure the medieval municipalities and some of the minor political organisms had been erected on this foundation, but the contractual theory had little to support it. The prevailing polity, prior to the American colonial period, had been that of arbitrary powera polity which primarily had no regard for the consent of the governed. No circumstance is better evidence of the essentially different polity and purpose of American political establishments than that the government from the first was based on contractual device. The charter granted to the primitive colonial corporation, the patent to the proprietary lord, and the compact of the voluntary association, were the primary institutional foundations here; the subsequent royal charters, articles of confederation and constitutions were of the same contractual nature.

Looking to these contracts as the constitutional basis of powers, the growth of democracy, i. e., of the cooperation of the people in our government, becomes a subject of absorbing interest. In charter grants and patent rights the King was regarded as the source of all power, as the prototype of the State, the embodiment of the rights of the people as an organic whole, and the stock company and proprietary were looked upon as his

creatures.

The contract, in such cases, was between the King, as the representative of the rights of the people, and the representatives of the King. But when the King was absent or was opposed to the interests of the people, it then became necessary for the people to contract with themselves, to form a social compact, as to the agencies of government. The first instance of this kind that was felt by the institutional world was in the Plymouth colony at the time of the formation of the fundamental compact.1

As the first legislative bodies in several of the colonies were popular assemblies, so the first constitutional convention was a congregation of the people. The constituent assembly of the Plymouth colony, as well as the constitutional conventions of the Rhode Island and New Haven colonies, were of this character. But the "body politic" in all of the colonies soon became too large and unwieldy, too widely distributed, to meet convenientlyto organize themselves politically in popular convention, and then and there agree upon the structure and powers of government. The people, therefore, in the formation of their constitutions, from necessity resorted to the

1 See supra, p. 43-In this case the King and the King's corporation were absent.-Also supra, Ch. II, p. 51.

*

The Plymouth compact was one of the most general nature. It did not provide for the structure of the corporate agents of government. It did not provide for a grant and apportionment of sovereign powers. It was simply a fundamental compact whereby they did "by these presents" "solemnly and mutually, in the presence of God and one another * * covenant and combine (themselves) together into a civil Body Politic, for the further Ordaining and Preserving and Furtherance of the Ends aforesaid; and by virtue hereof enact, constitute and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony." They left both the structure of corporate agents and the powers, to subsequent acts of the "body politic" so formed. New Haven, however, formulated a constitution that was separate from the people-which determined on both the general structure and powers.

principle of representation in constitution making; they chose delegates whom they empowered to act for them. In some cases the powers granted by the people to these delegates were of such nature that their acts in convention were made binding upon the body politic without further sanction; in other cases the powers of the delegates were limited to the formation of a fundamental charter which was to be referred to the people, or to their representatives, for adoption or rejection. Thus, in 1643, the articles of union framed by the United Colonies of New England were referred back to the people of New England for approval. In 1777 the Articles of Confederation were referred to, and later ratified by the several colonial legislatures; in 1787 the constitution of the United States was referred for ratification to constituent conventions to be held in the various States.

The referendum was, however, little employed in the adoption of the early State constitutions. But, with the establishment of the first legitimate governments, we find a manifest desire on the part of the people, in those States where the town meeting prevailed, to participate directly in the formation of the constitution. The principle that governments derive their just powers from the consent of the governed was a sacred one. It having become an impossibility for the people as a corporate unit to get together, agents or representatives being necessary for the purpose of formulating some constitutional plan, it follows that any action on the part of the people compatible with the principle of representation must be by the referendum. So practical has the plan proven, and so wholesome in its effects, that from this humble beginning it has now become the general method, in fact, the only legitimate method of adopting constitutions in all States but three. The evolution of

3 Bancroft, I, p. 289-94; McCracken, Swiss Solution of American Problems, Copley Square Series, p. 14.

the referendum in the adoption of constitutions is shown in the table opposite; those constitutions adopted without submission to popular vote appear in the table below the double diagonal line, while those which were submitted to the people are shown above it.

In making a comparison by decades from 1770 to 1890 it will be found that there has been a very decided increase in the use of the one method, and a very decided decrease in the use of the other:

*Including the secession constitutions and those of the reconstruction period rejected by Congress.

Eliminating from the list the ordinances of secession and those rejected by Congress, and taking periods of thirty years, we have the following results:

These facts, together with the fact that of the thirtyfive constitutions adopted during the last thirty years only three have been by any other method than by the referendum, it would appear, even without express provision in the various constitutions, that this method of procedure would have become the settled law of the land.