now subject to control, but which might be perpetuated under a State government, these and the like questions, in which the whole country is interested, cannot be finally solved by the people of the Territory for themselves, but the final decision must rest with Congress, and the judgment must be favorable before admission can be claimed or expected. II. In the original States, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body politic, who, being vested with ultimate sovereignty, and the source of all State authority, have power to control and alter the law which they have made at their will. But the people, in the legal sense, must be understood to be those who, by the existing constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed. III. But the will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legislative department of the State, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any provision for amendment or revision contained in the constitution itself.1 Opinions of the Judges, 6 Cush. 573; Collier v. Frierson, 24 Ala. 100. The first constitution of New York contained no provision for its own amendment, and Mr. Hammond, in his Political History of New York, Vol. I. c. 26, gives a very interesting account of the controversy before the legislature and in the council of revision as to the power of the legislature to call a convention for revision, and as to the mode of submitting its work to the people. In Collier v. Frierson, 24 Ala. 108, it appeared that the legislature had proposed eight different amendments to be submitted to the people at the same time; the people had approved them, and all the requisite proceedings to make them a part of the constitution had been had, except that in the subsequent legislature the resolution for their ratification had by mistake omitted to recite one of them. On the question whether this one had been adopted, we quote from the opinion of the court: "The constitution can be amended in but two ways; either by the people who originally framed it, or in the mode prescribed by the instrument itself. If the last mode is pursued, the amendments must be proposed by two-thirds of each house of the General Assembly; they must be published in print, at least three months before the next general election for representatives; it must appear from the returns made to the Secretary of State that a majority of those voting for [* 32] IV. In accordance with universal practice, and from the very necessity of the case, amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval. But no body of representatives, unless specially clothed with power for that purpose by the people when choosing them, can rightfully take definitive action upon amendments or revisions; they must submit the result of their deliberations to the people who alone are competent to exercise the powers of sovereignty in framing the fundamental law-for ratification or rejection. The constitutional convention is the representative of sovereignty only in a very qualified sense, and for the specific purpose, and with the restricted authority to put in proper form the questions of amendment upon which the people are to [* 33] pass; but the changes in the fundamental law of the State must be enacted by the people themselves.1 representatives have voted in favor of the proposed amendments, and they must be ratified by two-thirds of each house of the next General Assembly after such election, voting by yeas and nays, the proposed amendments having been read at each session three times on three several days in each house. We entertain no doubt that to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature or any department of the government can dispense with them? To do so would be to violate the instrument which they are sworn to support, and every principle of public law and sound constitutional policy requires the courts to pronounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law." See also State v. McBride, 4 Mo. 303. See upon this subject Jameson on the Constitutional Convention, §§ 415-418, and 479-520. This work is so complete and satisfactory in its treatment of the general subject, as to leave little to be said by one who shall afterwards attempt to cover the same ground. The Supreme Court of Missouri have expressed the opinion that it was competent for a convention to put a new constitution in force V. The power of the people to amend or revise their constitutions is limited by the Constitution of the United States in the following particulars: 1. It must not abolish the republican form of government, since such act would be revolutionary in its character, and would call for and demand direct intervention on the part of the government of the United States.1 2. It must not provide for titles of nobility, or assume to violate the obligation of any contract, or attaint persons of crime, or provide ex post facto for the punishment of acts by the courts which were innocent when committed, or contain any other provision which would, in effect, amount to the exercise of any power expressly or impliedly prohibited to the States by the Constitution of the Union. For while such provisions would not call for the direct and forcible intervention of the government of the Union, it would be the duty of the courts, both State and national, to refuse to enforce them, and to declare them altogether void, as much when enacted by the people in their primary capacity as makers of the fundamental law, as when enacted in the form of statutes through the delegated power of their legislatures.2 VI. Subject to the foregoing principles and limitations, each State must judge for itself what provisions shall be inserted in its constitution; how the powers of government shall be apportioned in order to their proper exercise; what protection shall be thrown around the person or property of the citizen; and to what extent private rights shall be required to yield to the general good.3 * And the courts of the State, still more the [* 34] courts of the Union, would be precluded from inquiring without submitting it to the people. State v. Neal, 42 Mo. 119. But this was obiter. 1 Const. of U. S. art. 4, § 4; Federalist, No. 43. * Cummings v. Missouri, 4 Wall. 277; Jefferson Branch Bank v. Skelly, 1 Black, 436; State v. Keith, 63 N. C. 140; Jackoway v. Denton, 25 Ark. 525; Union Bank v. State, 9 Yerg. 490; Girdner v. Stephens, 1 Heis. 280; Railroad Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 649. Matter of the Reciprocity Bank, 22 N. Y. 9; McMullen v. Hodge, 5 Texas, 34; Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9. In the case last cited, Denio, J., says: "The [constitutional] convention was not obliged, like the legislative bodies, to look carefully to the preservation of vested rights. It was competent to deal, subject to ratification by the people, and to the Constitution of the federal government, with all private and social rights, and with all the exist into the justice of their action, or questioning its validity, because of any supposed conflict with fundamental rules of right or of government, unless they should be able to show collision at some point between the instrument thus formed and that paramount law which constitutes, in regard to the subjects it covers, the fundamental rule of action throughout the whole United States.1 How far the constitution of a State shall descend into the particulars of government is a question of policy addressed to the convention which forms it. Certain things are to be looked for in all these instruments; though even as to these there is great variety, not only of substance, but also in the minuteness of their provisions to meet particular cases. I. We are to expect a general framework of government to be designed, under which the sovereignty of the people is to be exercised by representatives chosen for the purpose, in such manner ing laws and institutions of the State. If the convention had so willed, and the people had concurred, all former charters and grants might have been annihilated. When, therefore, we are seeking for the true construction of a constitutional provision, we are constantly to bear in mind that its authors were not executing a delegated authority, limited by other constitutional restraints, but are to look upon them as the founders of a State, intent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness, at the expense of any and all existing institutions which might stand in their way." 1 All the State constitutions now contain within themselves provisions for their amendment. Some require the question of calling a convention to revise the constitution to be submitted to the people at stated periods; others leave it to the legislature to call a convention or to submit to the people the question of calling one; while the major part allow the legislature to mature specific amendments to be submitted to the people separately, and these become a part of the constitution if adopted by the requisite vote. When the late rebellion had been put down by the military forces of the United States, and the State governments which constituted a part of the disloyal system had been displaced, serious questions were raised as to the proper steps to be taken in order to restore the States to their harmonious relations to the Union. These questions, and the controversy over them, constituted an important part of the history of our country during the administration of President Johnson; but as it is the hope and trust of our people that the occasion for discussing such questions will never arise again, we do not occupy space with them in this work. It suffices for the present to say, that Congress claimed, insisted upon, and enforced the right to prescribe the steps to be taken and the conditions to be observed in order to restore these States to their former positions in the Union, and the right also to determine when the prescribed conditions had been complied with, so as to entitle them to representation in Congress. as the instrument provides, and with such reservations as it makes. II. Generally the qualifications for the right of suffrage will be declared, as well as the conditions under which it shall be exercised. III. Separate departments will be created for the exercise of legislative, executive, and judicial power, and care taken to keep the three as separate and distinct as possible, except so far as each is made a check upon the other to keep it within proper bounds, or to prevent hasty and improvident action. The executive is a check upon the legislature in the veto [* 35] power, which most States allow; the legislature is a check upon both the other departments through its power to prescribe rules for the exercise of their authority, and through its power to impeach their officers; and the judiciary is a check upon the legislature by means of its authority to annul unconstitutional laws. IV. Local self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And even if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view. V. We shall also expect a declaration of rights for the protection of individuals and minorities. This declaration usually contains the following classes of provisions: 1. Those declaratory of the general principles of republican government; such as, that all freemen, when they form a social compact, are equal, and no man, or set of men, is entitled to exclusive, separate public emoluments or privileges from the community, but in consideration of public services; that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority; that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, security, and the protection of property; that for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may think proper; that all elections shall be free and equal; that no power of suspending the laws shall be exercised except by the legislature or its author |