No CrossRef data available.
Article contents
Amendment of State Constitutions
Published online by Cambridge University Press: 02 September 2013
Extract
The right of the people, acting within the bounds of the law and through organs constituted in conformity with the prescriptions of the existing constitution, to alter, amend, or abolish their form of government whenever they deem it necessary to their safety and happiness is, in effect, declared by practically every American bill of rights to be not only fundamental but inalienable and indefeasible. The phraseology differs in some of them but the substance is the same in all. Without such a right the mistakes and errors of the past could not be eliminated from the body politic nor the accumulated wisdom and experience of other States utilized. Without it, the fundamental maxim that constitutions grow instead of being made would be meaningless and political development impossible. An acute thinker has well observed that no constitution can expect to be permanent unless it guarantees progress as well as order. Political conservatism is a virtue too often trampled upon by statesmen, but it has its limits, and, in its exaggerated form, becomes a source of revolution. The amending power has been aptly compared to a safety valve which ought to be so adjusted as not to discharge its peculiar function with too great facility lest it become an escape pipe for party passion and political prejudice, nor with such difficulty that the force needed to induce action will explode the machine.
- Type
- Research Article
- Information
- Copyright
- Copyright © American Political Science Association 1907
References
1 J. S. Mill: Representative Government, p. 8.
2 Jameson: Constitutional Conventions, p. 549.
3 They were the Constitutions of N. H., 1776; N. J., 1776; N. Y., 1777; N. C., 1776; Pa., 1790; S. C., 1776 and 1778; Tenn., 1796 and Va., 1776. The Pennsylvania Constitution of 1776 contained an amending provision but for some reason it was dropped from the constitution of 1790.
4 The Constitution of New Hampshire, 1776, for example, contains but few more than 900 words. Compare it with the Constitution of Missouri, 1875, which contains 27,000 words with the Constitution of Virginia, 1901, which contains about 35,000 words, and with that of Louisiana, 1898, which contains over 40,000 words.
5 They were the Constitutions of Virginia, 1830, 1851 and 1864.
6 Curtis, Const. Hist. of the U. S., vol. I, p. 261.
7 Fla., 1865; Ga., 1865; Ill., 1818; Ind., 1816; Ky., 1850; La., 1812; Md., 1851; Miss., 1817; Neb., 1867; Ohio, 1802.
8 Ala., 1819; Ark., 1836, 1864, 1868, 1874; Conn., 1818; Del. 1831; Ind., 1851; La., 1845, 1852, 1864, 1868, 1898; Me., 1820; Mass., 1822; Miss., 1832, 1868, 1890; Mo., 1820, N. J., 1844; N. Y., 1821; Oregon, 1857; N. Dak., 1889; Penn., 1838, 1873: R. L., 1842; Tenn., 1834; Tex., 1845, 1868, 1876; Vt., 1870.
9 Ala., 1865, 1867, 1875, 1901; Cal., 1849; Del. 1897; Fla. 1868; Ga., 1868; Ill., 1848, 1870; Idaho, 1889; Iowa, 1846, 1857; Kan., 1859; Ky., 1891; Md., 1864, 1867; Mich., 1835, 1850; Minn., 1857; Mo., 1864, 1875; Mont., 1889; Nev., 1864; N. Y., 1846, 1894; N. C., 1868, 1876, 1901; Neb., 1875; O., 1851; S. C., 1865, 1868, 1895; S. Dak., 1889; Tenn., 1870; Tex., 1866; Utah, 1897; Va., 1870, 1901; W. Va., 1863, 1872; Wis., 1848; Wash., 1889; Wyo., 1889. In Delaware the referendum is not required although the amendment must be passed by two successive legislatures with intervening elections.
10 Ark., Conn., Ind., La., Mass., Miss., N. J., N. Dak., Ore., Pa., R. I., Tenn., Tex., Vt.
11 The Pennsylvania Constitution of 1776 required the legislature to call a convention every seventh year; so did those of Vermont, 1777, and New Hampshire, 1784. The Georgia Constitution of 1789 required a convention to be assembled in 1794.
12 In 1900 a proposition to call a convention was submitted to the voters of Iowa but was defeated by a small majority.
13 In 1898 the people of Michigan voted on the question of calling a convention but owing to the requirement of a majority of those voting at the election the proposition failed of adoption. The question was again submitted in 1904 and lost for the same reason. The question was submitted for a third time at a special election in 1906 and received a majority of 70,000 votes.
14 In 1894 the proposition to call a convention in New Hampshire was rejected; it was again submitted in 1900 and carried. The convention was held in 1902. It submitted ten amendments, four of which were adopted.
15 Ala., Cal., Col., Del., Fla., Idaho, Ill., Iowa, Kan., Ky., Mich., Minn., Mo., Mont., Neb., N. Y., Nev., N. C., O., S. Dak., S. C., Utah, Va., Wash., Wis., Wyo., In three of these, Iowa, Michigan and New York such a question, as stated above, must be submitted at regular intervals. In 1899, the people of California voted against holding a convention.
16 Earlier constitutions containing provisions which belong to this class were those of Florida, 1838 and 1865; North Carolina, 1868; and South Carolina, 1790 and 1865.
17 In 1903 the legislature of Massachusetts proposed an amendment to establish the initiative as a method of proposing amendments. It provided that any amendment petitioned for by 50,000 voters and approved by 15 senators and a majority of representatives should be submitted to the people at the next general election. The proposal, however, was not repassed by the legislature in 1904. Similar proposals have recently been rejected in Mo. and Neb.
18 Cal., Col., Del., Ga., Idaho, Ill., Kan., Me., Mich., Miss., Mont., S. C., Tex., Wash., W. Va., Wyo.
19 Ark., Ind., Iowa, Minn., Miss., Nev., N. J., N. Y., N. Dak., Ore., Pa., R. I., S. Dak., Tenn., Va., Wis.
20 The Constitution of California authorizes such publication as the legislature may deem sufficient but does not require it. Recently, acts have been passed in several States, notably in Fla., Mich., S. Dak. and Wis., to secure greater publicity of amendments so submitted to the voters. An act passed by the legislature of Mich., in March, 1905, requires the Secretary of State to prepare concise statements setting forth the nature, purport and effect of proposed amendments and to send three copies of such statements to all daily and weekly newspapers of the State with the request that they give as wide publicity as possible to the proposed amendments. At least ten copies are required to be posted at each polling place; two each in Dutch, German and Polish and four in English.
21 Ind., Iowa, Mass., Nev., N. Y., N. Dak., Ore., Pa., S. C., Tenn., Vt., Va. and Del.
22 Cal., Ill., Ia., Ga., Fla., Idaho, Kan., La., Md., Minn., Miss., Mont., Neb., N. Dak., N. J., O., Wash., Wyo.
23 Ark., Col., Conn., Ill., Minn., Miss., O., Ky., N. C.
24 Idaho, Ind., Mo., Nev., N. J., N. Dak., Ore., Vt., Wyo.
25 The Constitutions of Mississippi and South Carolina, provide that no amendment ratified by the people shall have any validity until the legislature has by formal act inserted it in the constitution. The legislature has full discretionary authority in the matter and may decline to insert an amendment which has received the popular approval.
26 Amendments proposed by the legislature were put into operation without popular ratification by the Constitutions of Arkansas, 1836 and 1864; of Florida, 1838; of Georgia, 1798; of Maryland, 1776; and of South Carolina, 1788.
27 Opinion of the Justices, 6 Cush., Mass., 573.
28 Opinion of the Justices, 14 R. I., 649.
29 Indeed, twenty-seven constitutional conventions have been called by the legislatures since the Revolution without express constitutional authority.
30 Collier v. Frierson, 24 Alabama, p. 100 (1854).
31 Koehler v. Hill, 60 Iowa, 543 (1883).
32 Thomason v. Ruggles, 69 Cal., 465 (1886); prohibitory amendment case, 24 Kan., 700 (1881); State v. Brookhart, 84 N. W. Rep., 849 (Mo., 1901).
33 Oakland Paving Co. v. Hilton, 69 Cal., 479 (1886); Koehler v. Hill, 60 Iowa, 543 (1883).
34 State v. Tufly, 19 Nev. 391.
35 Green v. Weller, 32 Miss., 650 (1856); State v. McBride, 4 Mo., 303 (1836).
36 Trustees University of N. C. v. Mclver, 76 N. C., 72 (1875).
37 Koehler v. Hill, 60 Iowa, 543 (1883).
38 Eason v. State, 11 Ark., 481 (1851).
39 State v. Mason, 43 La., Ann. 590 (1891).
40 Hatch v. Stoneman, 66 Cal., 632 (1885).
41 State ex. rel. Hudd v. Timme, 54 Wis., 318.
42 Illinois v. Reeves, decided February, 1906.
43 State v. Powell, 77 Miss., 543.
44 State v. Swift, 69 Indiana, 505. This decision was reaffirmed by the Supreme Court of Indiana in 1901 in the case of In re Denny 59, N. E. Rep., 359.
45 State v. Powell. 77 Miss., 543 (1900).
46 Thus, at the general election of November, 1904, less than half of the registered voters of Mississippi went to the polls, and the proportion was but little larger in several other States. The New Orleans Times-Democral complains bitterly that at the recent election (Nov., 1906) several far-reaching amendments were adopted in that State by a vote of one-sixth of the electorate. This criticism is not without weight, but in view of the fact that hardly more than one-half of the registered voters of La. have voted at the general elections in recent years, an absolute majority requirement would be prohibitory. At the recent election, an amendment was ratified in South Carolina by a vote barely exceeding eight thousand.
47 The total vote cast at the election was 1,090,869; for the amendment, 163,057; against it 76,519. A more recent instance of popular indifference in such matters is furnished by the State of Kansas where at the recent general election (Nov., 1906) of 300,752 votes cast for the head of the State ticket only 62,000 were cast on a proposition to amend the Constitution.
48 Law of the Constitution, p. 137.
Comments
No Comments have been published for this article.