The proposed constitution of Indiana

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II. Intent of the Indiana Constitution

While the right of the people to adopt a new constitution at any time is clear under the general principles of American law, it is equally clear that it was the actual intent of the makers of the present Constitution to preserve that right, as well as the right of special amendment. It is also plain that they meant to preserve it by simply not prohibiting it. In fact it is by virtue of this distinction between what is prohibited and what is not prohibited that our present Constitution itself exists. The Constitution of 1816 made no provision for separate amendments, and its only provision as to a new constitution, aside from the declaration of right above mentioned, was that "every twelfth year after this Constitution shall have taken effect'' a vote of the people should be taken for or against a constitutional convention, and, if the vote was favorable, the legislature should call an election for a convention.

But, in fact, no such vote was taken in 1828, and not in 1840. In 1849, however, there was a strong demand for a new constitution. The breaking down of the State's internal improvement system had made necessary a large increase of private corporations, each of which had to be formed by a special act of the legislature, and this made an intolerable burden. There were also other features in which changes were desired, and on January 15, 1849, the General Assembly passed a law calling- for a vote on the question of a constitutional convention. There was considerable opposition to the convention, but at the election on August 6. 1849, it was decided for by a vote of 74,895 to 53,639, as announced by the Secretary of State.

The convention itself recognized fully that it had not been called as provided by the Constitution of 1816, and the matter came into discussion in connection with the question of amendment, as to which there were conflicting views. The present provision for amendment (Article 16) was proposed by Robert Dale Owen, but there were others who wanted to make a provision for a convention, as in the old Constitution.

In the debate, John Pettit, of Tippecanoe, afterward judge of the Supreme Court, and recognized as one of the ablest lawyers in the convention, said:

"Sir, I am clearly of the opinion that we are encumbering our records too much with these propositions for amendment. All experience shows us that the people of the several States of the Union will amend the constitutions of the States whenever and in whatever mode they see fit. Thirty years ago our fathers formed a constitution in which they inserted a provision that it ijiig-ht.be amended .in such a mode, and in no other manner. Yet, here we are proposing to violate that very provision." (Debates, page 1938.)

This last proposition was controverted by. J. B. Howe, of Lagrange, who desired to limit the power of amendment. He said: "The gentleman from Tippecanoe has stated that in the old Constitution there is a prohibitory clause preventing amendment or alteration of the Constitution unless it be made in the manner set forth therein. I think he is a little mistaken, however, as to the text. The Constitution prescribes the manner in which it shall be done, but it does not deny, or prevent by injunction, the making of amendments in any other way. It is for that reason I propose to add the words that no convention for the purpose of amending the Constitution shall be called at any other time than once in twelve years. I wish to exclude a conclusion by declaring that amendments shall not be made in any other manner than herein prescribed."

This view was indorsed by Robert Dale Owen, who said: "I agree with the gentleman from Lagrange that the gentleman from Tippe r canoe has taken an incorrect view of this subject. He has declared that we are here in direct violation of a provision of the old Constitution. The gentleman from Lagrange has well shown that there was no prohibition in regard to the matter. It was well said that the question of amendment should be submitted every twelve years; but it was not said that the people might not, or that the legislature might not pass a law at other periods, calling a convention to amend the Constitution." (Debates, p. 1938.)

But Mr. Owen was equally in opposition to the proposal to restrict the right of revision. He proceeded: ,

"Now the gentleman from Lagrange proposes that there shall be in the Constitution an absolute prohibition in regard to this matter.. There are some things, sir, that it is in ,vain to do, in legislation. We must never, in legislation, attempt impossibilities. The gentleman is attempting an impossibility now; he is attempting that which he has no right, which this Constitution has no right to do — which no power on earth has any right to do. [Applause.]

"If we have a right to say that the legislature shall not, in twelve years, pass a law calling a convention, we have an equal right to say that they shall not call a convention in twenty years, or in fifty years. We have an equal right to say that there shall be no convention held within our time or within that of our children. Shall we, by »a section to be inserted in our Constitution, declare that we are infallible, and that what we now enact shall not be changed?"

The views of Mr. Owen on this subject are of special importance because they were fully adopted by the convention, on all points, by overwhelming votes; and he made it clear that he had no intention, of restricting the power of revision, but on the contrary, he desired to furnish an easy and simple mode of amendment which would obviate the necessity of. .calling a convention. He said:

"I am not prepared to say as to how far the abstract right of the legislature extends in regard to submitting to 'the popular vote propositions of amendment; nor am I prepared to say that as a matter of abstract right they may not do so whenever they think it proper and expedient. But I say if you insert such a provision as this, placing no greater check than that of requiring two successive legislatures to act affirmatively upon the question before it shall be submitted to the people, I am convinced that it will be entirely satisfactory." (Debates, p.. 1939.)

This same idea of avoiding the trouble and expense of an unnecessary convention was general. When the plan of separate amendments was first offered, A. C. Stevenson, of Putnam, said:

"It will be no easy or brief task for this convention to remodel the whole Constitution. It will take this convention at least four months to do it; whereas, if there had been a provision of this kind in the old Constitution the necessary amendments might have been made with a very trifling expense." (Debates, p. 1258.)

The same argument was used afterward (Debates, pp. 1916, 1918), and it was clearly shown that the aim of the convention was not to limit the right of revision, but to extend it by the system of special amendment.

It is well-settled law that the debates of a constitutional convention may be looked to in determining the meaning of a provision of the Constitution; and it is equally well-settled that the whole instrument is to be construed as one, giving full effect if possible to every section. (Cooley's Constitutional Limitations, p. 91.) By both of these tests it is evident that the provisions for amendment in article 16 are not intended as any limitation on the right of the people to adopt a new constitution whenever they so desire, which is declared in article 1. The only restriction is that if they desire to proceed by special amendment, under article 16, they must follow strictly the method there provided, in order to make the amendment valid. This principle is so firmly arid universally settled that anything more than its statement would be superfluous.

It is fortunate for the people of Indiana that this general power is reserved to them, for the system of special amendment has come to grief in a way that the constitution makers of 1851 never contemplated. It is impossible to read their statements and believe that they ever dreamed that the Supreme Court would hold that an amendment once submitted to the people and in which the majority of the people did not take enough interest to vote, either for or against it, should remain "pending" forever, and thereby block the. introduction of any other amendment. But they provided that "while an amend: ment or amendments, which shall have beem agreed to by one Genr eral Assembly shall be awaiting the action of a succeeding General Assembly, or of the electors, no additional amendment or amen.dr ments shall be proposed." ,

The so-called "lawyer's amendment" was introduced in the legisla-* ture in 1897. and under the decisions of the Supreme Court has been "pending" ever since. It was voted on in 1900, 1906 and in 1910, but without result. It still "pends," preventing" the submission of any other special amendment. For thirteen years the people have been shut out of their inalienable right of amendment. The Constitution of 1816 provided for a popular vote for a convention every twelve years.

Meanwhile numerous proposals for amendments have come up, and are '"overdue." Most of the changes proposed have been urged and discussed for years. The demand has been so pronounced that 1 called attention to it as one of the historic movements of the time in my history of Indiana, edition of 1904. (Indiana, in American Commonwealth Series, p. 468.)

This is the situation that has developed from what the constitution makers of 1851 intended as a simple and easy mode of amendment. The idea that a sovereign people, with the indefeasible and inalienable right to alter their constitution at will, should have their hands tied, aird their right defeated and alienated, because of lack of intere>t in some question submitted to them is so grotesque in its absurdity that: its mere statement is ample proof of its impossibility. If the constitution makers of 1851 had produced such a situation, and could realize it, they would certainly be convinced that "reason had not died with them."

But that situation does not exist; and the people of Indiana, in this emergency, are indebted to Governor Marshall for calling attention to the great fountain of reserve power in the people themselves, by which they can at any time make such alteration in their form of government as they believe essential to their welfare. There is nothing irregular or revolutionary in this. It involves only coming out of a rut, and moving ahead on the broad and unobstructed road which is provided for them by the Constitution itself. The people themselves have only to say whether they desire to remove the evils which experience has shown to exist in their present Constitution. This is the sort of solution for such a problem that Oliver P. Morton would have made, and it is in such recurrence to the fundamental principles of our government, when new problems arise, that the truest statesmanship is to be found.

III. The Legislative Authority

The situation presented in Indiana is one where a power of special amendment is provided by the Constitution, and the mode of exercising it is prescribed; while a general power of adopting a new constitution is also preserved, but with no mode prescribed. Under these conditions the provision of the mode is necessarily a matter of legislative discretion, because it is a legislative act, and the

Constitution vests "the legislative authority of the State" in the General Assembly, The rule is thus stated by Judge Cooley:

"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 6r 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." (Constitutional Limitations, p. 42; Jameson, Constitutional Conventions, sec. 375.)

This is necessarily true, because neither the executive nor the judiciary could prescribe the mode, and there is no way for the people to act except through their representatives. It is true that there have been cases when the movement was initiated by volunteer bodies, but this was in the absence of a valid, or effective legislative body. Of the thirteen original States, Pennsylvania was the only one in which the initiative of the constitution was not by the legislative body, but that case was one of practical necessity. The same course was followed by Vermont, which had no legislature, in 1777, and has been followed by some other States since, but it is a generally conceded legal proposition that if there is a valid legislative department in existence, an independent movement is not to be considered legitimate.

This question, however, has been the cause of serious disturbance in the United States, and of great agitation. It was the central question in the Kansas troubles over the Topeka and Lecomptom constitutions, and also in "the Dorr rebellion" in Rhode Island. Inthe latter case a body of citizens, probably a majority, wearied by the refusal of the charter government to allow a more democratic form of government, undertook to establish a new constitution and a government under it. The movement was suppressed, and the cas« finally came to the Supreme Court of the United States, which sustained the charter government as the valid existing legislative body. (7 Howard, United States, p. 1.) In none of these cases has anybody questioned the validity of initiation of a revision by the legislature — the question was the validity of the initiative by independent bodies of citizens.

The common mode of legislative procedure is to call a constitutional convention, or to submit to a vote of the people the question of calling a constitutional convention. A convention so called is simply an agency for preparing a form of constitution for submission to the people. It is governed by the law which calls it not only as to its membership and mode of election, but as to the scope of its work. The legislature may limit the convention to a change of only a part of the constitution if it so desires. (Jameson, Constitutional Conventions, sec. 379.) In the absence of constitutional restriction the matter is one of legislative discretion; and this extends beyond

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the calling of a convention to any other mode of submitting a constitution to the people that is within "the legislative authority of the State.'

This term was borrowed from English law, and means the legislative power exercised by the British Parliament, subject, of course, in this country, to the restrictions of constitutions. (Cooley, Constitutional Limitations, pp. 104-5.) In the United States, at the time of the Declaration of Independence, the colonial legislative bodies had been supplanted by independent, or revolutionary legislative bodies in all the Colonies but Rhode Island and Connecticut. These bodies were known chiefly as "assemblies," "congresses," or "conventions," and were ordinary legislative bodies, as distinguished from the "constitutional conventions" of later date. When, therefore, on May 15, 1776, the Continental Congress "recommended to the several assemblies and conventions of the United Colonies where no government sufficient to the exigencies of their affairs hath 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," its appeal was to the ordinary legislative bodies, which were recognized as having the same power of making fundamental law, or constitutions, as the British Parliament. (Jameson, Constitutional Conventions, sees. 128-9.)

The action taken was on the same basis. The first Colony to move was New Hampshire, whose legislative body was known as "the Proyincial Convention." On November 3, 1775, the Continental Congress had agreed to call for the formation of independent colonial governments, and, without waiting for the formal call, the Provincial Convention of New Hampshire called for the election of a new convention "empowered by their constituents to assume government" — the Colony had not yet abandoned allegiance to King George. The election was held, and "as soon as the new convention came together, they drew up a temporary form of government; and agreeably to the trust reposed in them by their constituents, having assumed the name and authority of a House of Representatives, they proceeded to choose twelve persons to be a distinct branch of the legislature, by the name of a Council." (Belknap's Hist, of New Hampshire, vol. 2, p. 305.) In other words, the colonial legislature adopted the first constitution of New Hampshire, and then organized as the first legislature under the constitution they had made, continuing in office for one year.

This was the mode of adoption of the first American constitution, and the institution of independent government under it. Tt followed the precedent of the "Convention Parliament" of Great Britain, which was assembled by King William in 1689, in its "assumption of government;" but in its adoption of the constitution the colonial legislature exercised only the legislative powers of a British parliament, which were what was meant by "the legislative authority of the State," at that time. For the subsequent modification of that power by constitutional restraint, it will be necessary to look briefly at some of the precedents in the history of the American States. " The three original States next following New Hampshire in the adoption of constitutions used the same method, i. e., the constitutions were formulated and adopted by the ordinary legislative bodies without submission to the people; and these legislative bodies assumed the legislative powers under the constitutions, and proceeded with their exercise. These three States were South Carolina, Virginia and New Jersey, and these, with New Hampshire, were the only States that adopted constitutions prior to July, 1776. Exactly the same course was followed by Georgia in October, 1776.

These were illustrations of "the legislative authority of the State" without constitutional restriction. Its exercise was considered by the Supreme Court of South Carolina in 1823, and the court made the clearest and most exact statement of the character of the legislatures of the revolutionary period that was ever written. It is as follows:

"Between the declaration of our national independence and the adoption of the Federal Constitution this State was sovereign and uncontrolled. The people, in whom all power was vested, thought proper to employ the legislature as their agent in the exercise of that power.

"In the use of this power the legislature was not restricted. The legislators were the representatives of the people for all purposes; whatever could be done by the people could be done by the legislature. Each succeeding legislature possessed the same power and could not be bound by any act of a preceding legislature, for each legislature was the people. Whatever, therefore, one legislature could enact, a succeeding legislature could repeal. The form of government adopted by the legislature of 1776 was no more than any other legislative act, and was subject to the revision and repeal of a succeeding legislature. The legislature of 1778 did revise and repeal the act of 1776, and adopted another form of government, which is called 'the Constitution of 1778.' This constitution pretends to no control over succeeding legislatures, although it does restrain the officers of the government in the exercise of the powers vested in them for the administration of the laws. Had it attempted to restrain future legislatures it would have been inoperative, as each legislature possessed all the power of the people. The people, or their representatives, the legislature, when unlimited by the people, may do whatever is (not) physically impossible, although they ought not, as moral agents, to do what is morally wrong." (3 McCord, p. 354.)

This last sentence, so far as the law-making power is concerned, states exactly "the legislative authority of the State," which is vested in the State legislatures of today, and which has been fully recognized by the Supreme Court of Indiana in an unbroken line of judicial decisions running from 6 Blackford, p. 299, to 163 Ind., p. 512. As put by Judge Dewey and indorsed by Judge Elliott: "The legislative authority of this State is the right to exercise supreme; and sovereign power, subject to no restrictions except those imposed by our own Constitution, by the Federal Constitution, and by the laws and treaties made under it." (101 Ind., p. 564, at p. 567.)

IV. The Legislative Discretion

The right to exercise sovereign legislative power necessarily involves full legislative discretion in the exercise of that power. The power would not be "sovereign" if this were not true. The use of, this discretion was well illustrated in the action of the thirteen original States, all of which stood on the same basis of unlimited, sovereignty after declaring their independence. In five of them, as we have seen, viz., New Hampshire, South Carolina, Virginia, New Jersey and Georgia, the legislatures exercised the full sovereign legislative power by adopting constitutions without submitting them to a vote of the people for ratification, and by organizing the new government under these constitutions. They retained and exercised the legislative powers themselves, and elected the necessary executive and judicial officers.

In the remaining States, four distinct courses were followed by the legislatures. In August, 1776, the legislature of Maryland called for the election of a new legislature or "convention" for the special purpose of adopting a constitution, in addition to usual legislative work. The "convention" so elected continued as a legislature after adopting the constitution, which was not submitted to the people for ratification. The same course was followed by New York in 1777; and- with these two may be classed Pennsylvania and North Carolina, where the action was the same, except that the legislative body which adopted the constitution was called in Pennsylvania by a volunteer committee of citizens, and in North Carolina by the Committee of Safety. In these four the constitutions were not submitted to the people, and the bodies that formed them continued as ordinary legislatures.

In Rhode Island and Connecticut the power exercised by the legislatures was in principle the same as in the first five States above, but differed in the fact that the legislatures of these two adopted their existing colonial charters as constitutions, merely transferring their allegiance from the King of Great Britain. The same legislatures continued under the new governments, and the matter was not submitted to the people for ratification in any way.

In July, 1776, the legislature of Delaware called for the election of "deputies, to meet in convention, there to organize and declare the future form of government for this State." This convention met in August, and the constitution adopted by it was proclaimed on September 21, without submission to the people. It was the first body chosen for the special purpose of forming a constitution, and the only one of the original thirteen that did not exercise ordinary legislative powers; except that it called an election on Octobej 21 for selecting the officials provided for in the Constitution.

The last of the thirteen Colonies to adopt a constitution was Massachusetts. In that State the legislature first had a vote taken on the question of calling a special convention to form a constitution, and called it in compliance with the vote. The convention so called framed a constitution and submitted it to a vote of the people, with provision that a three-fifths vote should be necessary for ratification. This was the only one of the thirteen original States in which the first constitution was submitted to the people for adoption.

Since the adoption of the Federal Constitution "the legislative authority" of each State has been limited to the extent of the authority vested in the United States, but "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." In addition to this there have been various restrictions on "the legislative authority of the State" that is vested in State legislatures, by the constitutions of the several States, the most important and universal being the restriction of the legislature to legislative powers as distinguished from executive and judicial powers.

In regard to fundamental legislation, or the adoption of constitutions, there is generally conceded to be a limitation of final power by the common declaration that "the people have, at all times, an indefeasible right to alter and reform their government." It is true that there have been a number of State constitutions adopted without submission to the people, but this has been done only by constitutional conventions, and when done is justified on the theory that the people have delegated their final power of adoption by electing a convention especially for that purpose. Nobody claims that a State legislature would have power to adopt a constitution without submitting it to a vote of the people.

On the other hand, the power of initiation of fundamental legislation is even more firmly established in the legislature than it was in colonial times, for in the original States all of the legislatures that adopted constitutions were in the first instance created by independent action of the people, and in Pennsylvania the body that adopted the first constitution was called directly by an independent, volunteer committee of citizens. But since the formation of our National Government no such independent action has been recognized as valid if there was in existence at the time a valid legislature. Furthermore, in all cases when constitutions have provided for either special amendment or general revision, the initiative step, whatever it might be, has been given to the legislature.

The constitutions adopted in this later period have been of two classes: (1) those adopted by existing States, in place of former constitutions; (2) those adopted by new States for admission to the Union. In both these classes the usual mode of procedure has been by constitutional convention, for three reasons: (1) Where constitutions have provided the mode of general revision they have adopted the convention system; (2) Where new States have been formed under enabling acts those acts have usually provided for conventions; (3) Where no mode of general revision has been provided by the constitution, legislatures have usually provided for constitutional conventions, because they had as much as they could well attend to in ordinary legislation. Hence the cases of general revision by legislatures in the later period are few 'in number, and in the nature of emergency action; but they are* none the less examples of "legislative authority" and "legislative discretion."

Of the exercise of legislative discretion by existing States in the general revision of their constitutions, the most notable illustrations are under what is known as "the commission system." This orginated in New York in 1872, when the legislature, without any express authority, and without any precedent, passed an act for the appointment of a commission of thirty-two members, four from each judicial district, "for the purpose of proposing to the legislature at its next session, amendments to the Constitution." The amendments so proposed were so extensive that they amounted to a revision of the Constitution, some fourteen weeks being occupied in' their preparation. With some changes by the legislature they were submitted to the people as "amendments," although the existing Constitution provided for conventions to "revise the Constitution and amend the same."

A similar course was followed by New Jersey in 1875, except that the commission was composed of three persons appointed by the Governor, the President of the Senate and two persons appointed by him, and the Speaker of the House and two persons appointed by him. The changes proposed by this commission were also submitted to the people, by the legislature, as "amendments."

The Michigan legislature of 1873 provided for a commission of eighteen members appointed by the Governor, not more than two from any one congressional district, who were to report to the next session of the legislature, general or special, "such amendments and revision of the Constitution" as they deemed advisable. They recommended a revised constitution to the special session of the legislature in 1874, which amended it and submitted the amended constitution to the. people as a whole, just as the Indiana legislature has done. (Michigan Session Laws, 1874, p. 11; Senate Journal, p. 215.)

In Maine there was a novel action that will illustrate the scope of "legislative discretion" in the initiation of constitutional reform. The proposals of the commission were submitted as amendments, but with the provision that after the election "the Chief Justice of the Supreme Judicial Court shall arrange the constitution as amended, under appropriate titles, and in proper artcles, parts and sections, omitting all sections, clauses and words not in force, and making no other changes in the provisions or language thereof, and shall submit the same to the legislature at its next session."

If approved by the legislature this revision was to be formally enrolled and "the constitution with the amendments made thereto, in accordance with the provisions thereof, shall be the supreme law of the State."

This provision was carried out, and the revised constitution so adopted became the Constitution of the State, although the preceding Constitution contained no provision for change in that manner.

In the adoption of constitutions for new States the general rule has been for conventions to be called under "enabling acts" passed by congress, but a number of new States adopted constitutions without waiting for that authorization. Among these were Tennessee, in 1796; Michigan, in 1835 and 1836; Arkansas, in 1836; Florida, in 1839; Iowa, in 1844; Wisconsin, in 1847; California, in 1849; Kansas, in 1855; Oregon, in 1857; Nevada, in 1864; Nebraska, in 1866, and Colorado, in 1876.