Constitutional Conventions : Their Nature, Powers, and Limitations

THE impendency of constitutional conventions in Illinois, Indiana, Massachusetts, Nebraska and New Hampshire, has stirred up a vast amount of legal and lay discussion as to the nature and powers of such bodies. The Illinois, Nebraska and New Hampshire conventions are expressly authorized by the constitutions of those States. But the Indiana and Massachusetts conventions, not being so authorized, are generally regarded as being revolutionary, and are considered by many to be wholly unconstitutional and void.

Where can one turn for authoritative information on these questions? The only treatise exclusively on Constitutional Conventions is the one by Judge Jameson, published in 1867, and to some extent revised in 1887. Even in its day, this book was rendered less valuable by the fact that it was written to support a preconceived theory, in the interests of which theory Judge Jameson freely distorted both law and facts.1 Today this book is obsolete (most of the judicial decisions on the subject being since 1887), and is out of print.

The fact that there is no modern or even ancient accessible work on the nature and powers of constitutional conventions, has led me to attempt to fill the gap with the present book, which represents no preconceived theory, but rather merely an impartial collection of all the available law and precedent.

The best modern treatment of the subject is contained in Dodd's "Revision and Amendment of State Constitutions" (1910), which however is written more from an historical than from a legal point of view, and which deals chiefly with methods of constitutional amendment, other than the convention method. I am greatly indebted to this work. Jameson's book also has been constantly before me, and much that is still valuable therein has been used.

But, in the main, I have consulted original sources themselves, rather than any author's interpretation of them. For the texts of the various constitutions themselves, I have used Thorp's compilation which was published by Congress in 1909.

The constitutional convention, as we know it today, also developed in America. It is true that governments had in the past been changed: by conventions (i.e. comings-together), but these had always been unrepresentative and spontaneous. As Braxton says:

The first and crudest conventions were in no sense representative bodies; but were mere voluntary, irregular, illegitimate assemblies of individuals, acting on their own motion and on their own behalf, who felt themselves sufficiently powerful to resort to the ultimate right of Revolution, and wrest, by violence, from their sovereigns, such governmental concessions as they desired. The existence of such bodies was neither provided for, nor recognized by, the laws or existing social system. They relied merely on the right of vis major to justify their actions and support their demands. Such was the Convention of the Barons at Runnymede in 1215, that framed, and, in a sense, enacted, Magna Charta, the first faint suggestion in England of a written constitution.

But in America the representative convention developed. It was a step as far beyond Runnymede as our constitutions were beyond Magna Charta.

The first American constitutions originated in a variety of ways. In order to understand the foundation upon which each rested, it will be necessary to consider: first, the origin of the Revolutionary legislative body in each of the thirteen States; and secondly, the method in which each constitution was enacted. Only three States went through the form of continuing the charter legislature, to wit: Delaware, Connecticut, and Rhode Island.