an important one it is difficult to arouse popular interest in abstract propositions of law. Furthermore there is usually little discussion of the amendment either on the platform or in the press, and such discussion as takes place in the legislature or convention is forgotten by the time the election arrives. Those States which require amendments to receive the approval of a majority of all the voters participating in the election have found that their constitutions are practically unamendable and have resorted to some ingenious devices in order to insure ratification. In Alabama, for instance, when an amendment relating to the city of Birmingham was submitted, it was provided that the words "For the Birmingham amendment" should be printed on the ballot, and every ballot cast was to be counted in favor of the amendment unless those words were erased. Usually the failure of a voter to take action on an amendment counts against it, but by this device Alabama made a voter's inaction count in favor of the amendment. In Nebraska and Ohio a plan was devised for placing political parties on record as to proposed amendments and letting the action of the party stand as the vote of any elector who voted a straight party ticket. In those States it was provided that proposed amendments should be printed upon the primary election ballot of each political party, and if a majority of the electors of any party voting upon such an amendment voted either for or against it such action should be construed to be the action of the party, and any voter who cast a straight party ticket thereby voted for his party's action on the amendment. This system was employed for several years in Ohio, and its working was well illustrated in the election of 1903. In that year five amendments were submitted. One had been indorsed by both Republicans and Democrats and received the general support of both. One amendment had been indorsed by the Republicans and was opposed by the Democrats. As the Republicans carried the election this amendment was adopted. Another amendment to which the Republicans invited "careful consideration," while the Democrats supported it, was lost. The fifth amendment was not indorsed by either party and only 53,774 voters out of 877,203 took the trouble to express an opinion upon it. This vote shows how weighty was the influence of party indorsement. V. RESULTS. A study of the development of the various processes of amendment which have been tried by the States reveals certain well-defined results. 1. There is universal recognition of the fact that every constitution should contain some provision for its amendment. This is made all the more necessary by the statutory character of many of the provisions now inserted in constitutions. Even in their most elemental provisions such instruments must be kept in harmony with changing public opinion and social and economic conditions. 2. There is an almost universal recognition of the constitutional convention as a normal and legal governmental agent. However much such bodies may have been associated originally with revolution and employed as the organ for effecting a break in legal continuity, they have now lost that character and have taken their place in American jurisprudence as normal and lawful agencies for effecting constitutional change. Occasionally a convention is found which, like the Illinois Convention of 1862 and the Mississippi Convention of 1890, regards itself as the embodiment of popular sovereignty and hence free from any restraints of existing law, either constitutional or statutory. These are becoming less and less frequent and represent a conception of the constitutional convention which is bound to pass away. 3. Except in a few States where a large part of the nominal voting population is habitually disfranchised, it is universally held that constitutional changes, whether initiated by a convention or a legislature or a popular petition, must be ratified by a popular vote. Even when this is not required by express constitutional provision, the practice is general. 4. There is an increasing sentiment in favor of providing some method of constitutional amendment which will operate independent of action by the legislature. The mode adopted by New York in 1894 has been adopted in but one other State, but the rapid growth of the popular initiative of constitutional amendments is an evidence of the desire to make it impossible for legislative bodies to prevent changes which the people wish. APPENDIX A. THE PROCEEDINGS OF THE TOWN OF CONCORD, At a meeting of the Inhabitents of the Town of Concord being free & twenty one years of age and upwards met by adjournment on the twenty first Day of October 1776 to take into Consideration a Resolve of the Honble. House of Representatives of this State on the 17th of September Last the Town Resolved as follows Resolve 1st. That this State being at Present destitute of a Properly established form of Government, it is absolutly necessary that one should be emmediatly formed and established Resolved 2 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 Priviliges, against any Encroachments of the Governing Part - 2a. Because the Same Body that forms a Constitution have of Consequence a power to alter it. 39. 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 & priviliges. Resolve 3. That it appears to this Town highly necessary & Expedient that a Convention, or Congress be immediately Chosen, to form & establish a Constitution, by the Inhabitents of the Respective Towns in this State, being free & of twenty one years of age, and upwards, in Proportion as the Representatives of this State formerly were Chosen; the Convention or Congress not to Consist of a greater number then y house of assembly of this State heretofore might Consist of, Exccept that each Town & District shall have Liberty to send one Representative, or otherwise as Shall appear meet to the Inhabitents of this State in General. Resolve 4th. that when the Convention, or Congress have formed a Constitution they adjourn for a Short time, and Publish their Proposed Constitution for the Inspection & Remarks of the Inhabitents of this State. Resolved 51. that the Honble. house of assembly of this State be Desired to Recommend it to the Inhabitents of the State to Proceed to Chose a Convention or Congress for the Purpas abovesaid as soon as Possible A True Copy of the Proceeding, of the Town of Concord at the General Town meeting above mentioned-att. Ephraim Wood Jun'. Town Clerk. CONCORD October ye 22. 1776. -Massachusetts Archives, Vol. 156, p. 182. APPENDIX B. OPINION OF THE JUSTICES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1833. 6 CUSHING, 573. OPINION OF THE JUSTICES OF THE SUPREME JUDICIAL COURT CONCERNING THE ALTERING OR REVISING OF THE CONSTITUTION IN ANY SPECIFIC PART THEREOF. The justices of the supreme judicial court have taken into consideration the two questions submitted to them, (by the house of representatives), and upon which the honorable house has requested their opinion, of the following tenor, namely: First. Whether, if the legislature should submit to the people to vote upon the expediency of having a convention of delegates of the people, for the purpose of revising or altering the constitution of the commonwealth in any specified parts of the same; and a majority of the people voting thereon should decide in favor thereof, could such convention holden in pursuance thereof act upon, and propose to the people, amendments in other parts of the constitution not so specified? Second. Can any specific and particular amendment or amendments to the constitution be made in any other manner, than that prescribed in the ninth article of the amendments adopted in 1820? And thereupon have the honor to submit the following opinion: The court do not understand, that it was the intention of the house of representatives, to request their opinion upon the natural right of the people in cases of great emergency, or upon the obvious failure of their existing constitution to accomplish the objects for which it was designed, to provide for the amendment or alteration of their fundamental laws; nor what would be the effect of any change and alteration of their constitution, made under such circumstances and sanctioned by the assent of the people. Such a view of the subject would involve the general question of natural rights, and the inherent and fundamental principles upon which civil society is founded, rather than any question upon the nature, construction, or operation of the existing constitution of the commonwealth, and the laws made under it. We presume, therefore, that the opinion requested applies to the existing constitution and laws of the commonwealth, and the rights and powers derived from and under them. Considering the questions in this light, we are of opinion, taking the second question first, that, under and pursuant to the existing constitution, there is no authority given by which any specific and particular amendment or amendments of the constitution can be made, in any other manner than that prescribed in the ninth article of the amendments adopted in 1820. Considering that previous to 1820 no mode was provided by the constitution for its own amendment, that no other power for that purpose, than in the mode alluded to, is anywhere given in the constitution, by implication or otherwise, and that the mode thereby provided appears manifestly to have been carefully considered, and the power of altering the constitution thereby conferred to have been cautiously restrained and guarded, we think a strong implication arises against the existence of any other power, under the constitution, for the same purposes. Upon the first question, considering that the constitution has vested no authority in the legislature, in its ordinary action, to provide by law for submitting to the people the expediency of calling a convention of delegates, for the purpose of revising or altering the constitution of the commonwealth, it is difficult to give an opinion upon the question, what would be the power of such a convention, if called. If, however, the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of altering the constitution in some particular part thereof, we are of opinion that such delegates would derive their whole authority and commission from such vote; and, upon the general principles governing the delegation of power and authority, they would have no right, under such vote, to act upon and propose amendments in other parts of the constitution not so specified. LEMUEL SHAW. MARCUS MORTON. JANUARY 24, 1833 |