THE AMENDMENT AND REVISION OF

STATE CONSTITUTIONS.

I. THE FIRST AMERICAN CONSTITUTIONS.

In the Constitutional Convention which met in Massachusetts in 1820 Daniel Webster said:

With the experience which we had had of the constitution, there was little probability that after the amendments which should now be adopted, there would be any occasion for great changes. No revision of its general principles would be necessary. And the alterations which should be called for by a change of circumstances would be limited and specific.

In expressing these views Webster did not foresee the vast social and economic changes which have taken place since his time, nor could he foretell the change which has come about in the public mind as to the proper functions of government. In 1780 and in 1820, and indeed in 1853, the people of Massachusetts were largely interested in establishing a series of checks and balances which would prevent an abuse of official authority, while at the present day emphasis is placed upon providing organs which can act and can meet the burdens which public opinion now places upon government.

Constitutions, particularly those of the States, reflect the political tenets and the social and economic beliefs of the times in which they are framed. As these change, constitutional provisions must correspondingly change, and the more detailed the constitution the more imperative will such changes become. Hence the amendment and revision of constitutions, while occurring perhaps at long intervals, is a normal part of our political life and should be provided for in the fundamental law of each State.

The outbreak of the Revolution in 1775 was quickly followed by the overthrow of the governments established in the colonies by the King's authority. An appeal for advice having been made to the Continental Congress, that body, on May 10,

1776, recommended "to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general." This resolution was quite generally acted upon, and before the close of 1780 all the colonies save Rhode Island and Connecticut, which retained their original charters, had adopted new constitutions. The breach with Great Britain was followed by considerable confusion of thought as to the legal situation created thereby and by uncertainty as to the future. New Hampshire took the extreme view that by the severance of relations with Great Britain all government had been destroyed. "It is our humble opinion," said a meeting of New Hampshire towns, "that when the Declaration of Independency took place, the Colonies were absolutely in a state of nature, and the powers of Government reverted to the people at large."2 New Jersey on the other hand, while declaring that because of the misrule of George III. "all civil authority under him is necessarily at an end, and a dissolution of government in each colony has consequently taken place," nevertheless held out this olive branch:

Provided always, and it is the true intent and meaning of this Congress, that if a reconciliation between Great Britain and these Colonies should take place, and the latter be taken again under the protection and government of the crown of Britain, this Charter shall be null and void otherwise to remain firm and inviolable.3

Whether or not the people had reverted to a state of nature and whether the breach with Great Britain was to be temporary or permanent, some provision had to be made for the erection or the continuance of institutions of government. By whom or by what organ of government should this be done? The obvious convenience of allowing the existing Provincial Congress or its successor to draft a new constitution impelled some States to adopt this mode. New Hampshire was one of these, but the opposition to the assumption of such authority

1 Journals of the Continental Congress (Ford, ed.), IV, 342.

Cited in Dodd, The Revision and Amendment of State Constitutions, 2.

* Constitution of New Jersey (1777), Art. XXIII.

was so great that it was necessary to send out a deputation to explain that the new government was only temporary. In Massachusetts the General Court requested the towns to empower it to frame a constitution. This request provoked much opposition, and the town of Concord, in what is believed to be the earliest formal statement in any official document of the distinction between a legislature and a constitutional convention, said:

That the Supreme Legislative, either in their Proper Capacity, or in Joint Committee, are by no means a Body proper to form & Establish a Constitution, or form of Government; for Reasons following, first Because we Conceive that a Constitution in its Proper Idea intends a System of Principles Established to Secure the Subject in the Possession & enjoyment of their Rights and Privileges, against any Encroachments of the Governing Part - 2a Because the Same Body that forms a Constitution have of Consequence a power to alter it. 3d Because a Constitution alterable by the Supreme Legislative is no Security at all to the Subject against any Encroachment of the Governing part on any, or on all of their Rights & privileges.1

So many towns, however, finally complied with the request of the General Court that it proceeded to frame a constitution which it submitted to the people in 1778. It was rejected, largely because of the source from which it emanated. Two years later another constitution, framed by a convention specially chosen for that purpose, was ratified by the people, and still continues to be the fundamental law of the Commonwealth.

In brief it may be said that of the constitutions framed in the period between the meeting of the Second Continental Congress in 1775 and the assembling of the Federal Convention in 1787, those of South Carolina (1776), Virginia and New Jersey were framed and promulgated by legislative bodies acting without special authority; those of New Hampshire (1776), Delaware, Georgia, New York and Vermont were framed and promulgated by legislative bodies which had been authorized by the people; those of Maryland, Pennsylvania, North Carolina, South Carolina (1778) and Massachusetts

1 The whole of this interesting document is printed in Appendix A. It is reproduced in facsimile as a frontispiece of A Manual for the Constitutional Convention of Massachusetts, 1917.

(1778) were framed by legislative bodies which formally or informally submitted their work to the people; those of Delaware and Georgia were framed and promulgated by a constitutional convention; those of Massachusetts (1780) and New Hampshire (1783) were framed by constitutional conventions chosen for that purpose only and were ratified by the people.

It was to be expected that constitutions drawn up in the midst of so much confusion and uncertainty as to the future should be crude and in many respects deficient. One of their most conspicuous defects was in the matter of amendment. Six of the fifteen constitutions adopted before 1787 did not mention the subject.1 Among the nine instruments which provided in some form for their amendment, there was great variance. Some adopted indirect and cumbersome methods; others made the process so difficult as to be practically impossible, while one went so far in the opposite direction as to permit amendment in the ordinary form of statutory enactment. The Massachusetts Constitution of 1780 provided that the question of calling a constitutional convention should be submitted to the voters in 1795, but it contained no other provision for amendment. Few States, however, have since failed to perceive that changes in political and social and economic conditions will necessitate changes in the organic law. No State outside of the original thirteen has ever failed to provide for the amendment of its constitution, and every constitution now in force anywhere in the Union contains some sort of provision to that end.

II. THE PROPOSAL OF AMENDMENTS.

In the forty-eight States of the Union it is now almost universally recognized that changes in the fundamental law shall be made only with the approval of the electorate. Delaware still permits its Legislature to make constitutional changes without reference to a popular vote and there are a few other States in which conventions, sometimes in direct violation of an

1 These were the New Hampshire, New Jersey, North Carolina, South Carolina and Virginia Constitutions of 1776 and the New York Constitution of 1777. Since 1787 only the Pennsylvania Constitution of 1790 and the Virginia Constitutions of 1830, 1851 and 1864 have contained no provision for amendment.