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tional conventions. But many constitutions contain provisions that became constituent parts of them without the meeting of any constitutional convention. Conventions are instruments which the people use for reasons of expediency in constitution-making; but their task should always be limited to drafting a plan of a constitution. The people — as all the constitutions say, in a more or less precise formula — are the sole possessor of political power, and they alone, therefore, can give the state its fundamental law. These are fundamental principles. It is not only theoretically that they are of the highest importance. It has repeatedly become of the greatest political significance, that conventions — partly by appealing to precedents in the struggle of the colonies with the mother country, and partly in imitation of the conrention of the first French revolution — have claimed to be the bearers of the people's sovereignty, a claim that in its final logical results tends to a complete overturning of the fundamental principle of American popular government, that is, transforms popular sovereignty into its very opposite. This doctrine, which rests on the logical absurdity of a transfer of sovereignty, which is identical with its entire alienation, is constantly losing ground, especially as far as the drafting of an entire constitution is concerned. Some of the constitutions provide, not only that the people shall decide whether a general revision of the constitution is to be made by a convention, but also that the revised or new constitution shall be submitted to the people and be voted upon by them. Hundreds of thousands of citizens can act, of course, only through representatives, as far as the drafting of the constitution is concerned, but in these cases the people have reserved to themselves, expressly and unconditionally, the initiative as well as the final decision.'
1 Americans distinguish between revolutionary and constitutional conventions, and many conventions are held in the United States which have nothing to do with adopting or amending a constitution.
2 It suffices to recall those conventions which decreed their respective states out of the Union after the presidential election of 1860. The Lecompton convention in Kansas, in 1857, was theoretically of peculiar interest and practically of great importance. It proposed to the people to vote, not whether or no they would adopt the whole constitution as drafted, but simply whether they would have “the constitution with slavery” or “the constitution without slavery." The majority of the people did not want the constitution at all. At the election ordered by the convention “the constitution with slavery” was adopted by 6,266 against 567 votes. The territorial legislature had already fixed a later day for voting on the general question, and at this election 10,266 votes were cast against the constitution
Here, therefore, no argument can be found in support of the other erroneous, and at least equally dangerous, doctrine that “the people” — meaning by this the majority of the persons with full political rights — can, by virtue of their sovereignty, amend a constitution in any form or manner other than that prescribed in the constitution. The idea of popular sovereignty has entirely lost in the United States that vague and demagogic character which in the first French revolution made it the cause as well as the cloak of all imaginable horrors. Popular sovereignty is the sole basis, not only in theory but in practice, of the entire legal system of the Union as well as of the several states; but according to the American theory and practice, popular sovereignty is not identical with a boundless arbitrariness. The people cannot be bound, but they can bind theinselves; and precisely because they have bound themselves they have less right to place themselves above the law established by their own sovereign will. Although this perverted conception of the substance of sovereignty has already had its history in the United States, these principles nevertheless, from generation to generation, have more and more mingled with the flesh and blood of Americans; and this explains the fact, often so surprising to Europeans, that we see displayed upon the broadest democratic basis a political system which, in general, is characterized by an eminently conservative spirit. Demagogy has often found in this system a wide field, but experiments and innovations have so far shown themselves only as exceptions which prove the rule, and the agitation in these exceptional cases, except as to the doctrines of the radical abolitionists, has never passed beyond legal bounds. Not despite, but in a great measure because of, the carrying out of the principle of popular sovereignty, the United States have hitherto been a less favorable field for revolutionary tendencies than most European states. We must not conclude from this, as Americans are wont to do, that this would self-evidently and always be the case, under other relations and with other nations.
and only 162 in favor of it. The result was a bitter and protracted parliamentary struggle, which finally ended with the victory of the freesoil party and of the principle of popular sovereignty, but only after the slave states had seceded. The number of conventions which have not submitted their work to the people is not small. Jameson (p. 446) reckons forty of them up to 1866. Twenty-nine of these revised the existing constitutions. During the same time there were seventy-eight conventions which followed the correct principle. Some constitutions contain no provisions at all about revision by convention,
1 This applies only to the revision of a constitution by a convention. I shall refer hereafter to the initiative of legislatures as to separate amendments.
§ 91. CONSTITUENT PARTS OF THE CONSTITUTIONS. The constitutions usually consist of three parts: the bill of rights, the constitution proper, or frame of government, and the so-called schedule. The last, strictly construed, is no constituent part of the constitution at all, but only an appendix of temporary importance. Some constitutions do not have it at all. It contains mainly provisions as to how the people shall manifest their acceptance or rejection of the proposed constitution, and as to the arrangements necessary in case of acceptance) in passing from the old to the new condition.
1 See, especially, the history of “Dorr's rebellion” in Rhode Island in 1841. The essential facts of it are concisely stated by Jameson, p. 216 et seq.
The bill of rights contains the “fundamental rights." As a rule it is thus entitled, and is put at the beginning of the constitution. The discussion of bills of rights in detail does not seem necessary, for not only do they agree in their essential contents, but they merely set forth at large and in detail the principles which have already been stated as arising from the so-called bill of rights of the federal constitution. It must be emphasized that here, too, the fundamental rights are not first granted by the constitution; they are regarded as existing rights, and are enumerated in the constitution only in order to protect them in the most effective way against any violation by the organs of public power. And for this reason, the bill of rights often ends with the declaration that the enumeration of certain fundamental rights must not be construed as meaning that the people have waived others.
ORGANIZATION OF THE GOVERNMENT. The separation of the legislative, executive and judicial powers is as thoroughly carried out in all the states as in the federal government. Many of the state constitutions expressly declare that no one of the three shall trespass upon the spheres of the others, so far as the constitution does not otherwise provide.
$ 92. THE LEGISLATIVE POWER. As a rule the official name of a state legislature is “the general assembly,” but in ordinary speech it is called simply the legislature. In all the states the legislatures consist of two chambers; the more numerous is styled the assembly or house of representatives, and the smaller the senate. Neither the franchise nor the right to seek office were originally controlled by radical democratic principles. In the course of time these have become more and more victorious everywhere. Although certain restrictions still exist here and there, yet all in all I am justified in saying that since the adoption of the fifteenth amendment so-called universal suffrage has become the rule everywhere. So, too, the restrictions on the right to seek office relate only to the age and to the domicile. The provisions as to the latter are much more strict than in the constitutional states of Europe. In the latter the principle prevails that the voters may seek their representatives where they please, but in the United States it is thought necessary to lay great stress upon local representation. In some of the states the regulation of this question is not even left to legislation; the constitutions provide that the transfer of the domicile from the election district involves absolutely the loss of the office and excludes — of course — re-election. As generally recognized is the principle that paid officials cannot be members of the legislature. This applies, indeed, to state as well as federal officials.? On the other hand, no member of the legislature can be appointed to a state office which was created or had its emoluments increased during his term of membership. In a few of the states clergymen are also excluded from the legislature. If different qualifications are required for membership in the two chambers, it is only as to age.