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Th

1. L76

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National Constitutional

Consequences

its Possible

What Limitations

Can

Imposed

Be

Powers

Upon the

of

of

Convention Called to Amend the Constitution


the

and

Convention

States?

United

No doubt the article by Mr. Walker K. Tuller, entitled A Convention to


Amend the Constitution, published in the March number of the North American;
Review has attracted the attention which its importance deserves.

The author

states, as a fact not generally known, that twenty-eight States of the Union have

'already applied to Congress to call suchla convention, asis provided for by section
I, article 5, of the Constitution of the United States. If this is true it is the most
momentous

makes it worthy

question now before the public; and its importance

of the most

careful consideration.

Mr. Tuller, after enumerating by their names the twenty-eight States, pro
ceeds to cite the language of the resolutions
consin,

passed by four,

Kansas and Pennsylvania.

He does not inform us why

viz.5:
_

he

selected four only,

I::0uisi;a'naE,
__~ 10* _ -1

ort_,he

_p:ardticuI'ar_

'named, nor why he did not publish the language of all the resolutions

Moreover,

by the twenty-eight States.

he avers, whenever

shall apply to Congress to call a convention,


'

be

Wis
_
&

jour

as passed

three more States

the provision of the Constitution will

fully complied with, and that Congress will then have no option nor discretion

about the matter, but must proceed to call a convention to propose amendments.

In making this statement,


object for which the States

he allows no

qualification nor limitation

may desire amendments,

which the application may be made.

as to the

nor as to the time within

He states unqualifiedly, whenever three

more States shall apply, those three will complete the required number, and Con
gress must proceed to call a convention

for the purpose

of proposing

amend

ments; and if it fail to do so, a court will, upon the request of any citizen, issue a
mandamus

terial .

to compel the exercise of a duty, which he says is merely minis

Leaving out of the question the power or the right of a court to issue a man
damus in such a case, may he not be mistaken

in his opinion that the Congress

in such a very grave and momentous matter?


The calling of a
convention to amend the Constitution is the gravest and the most important duty
has no discretion

It

which Congress can be called on to perform.


manded by the States, nor is

is a thing not lightly to be de

it to be conceded by the legislative department, with


The meeting of

out the most serious and careful consideration.

a convention

to

to our Constitution may be an event fraught with conse

propose amendments

quences, which we can no more foresee than Louis


the terrible results which flowed

X-VI and his advisers foresaw

from the gathering

of the States General

of

France in the Eighteenth Century.

Mr. Tuller says When the Constitution was adopted, we were


To-day we are a Nation.

tion of separate States.


conception

of our nationality.

a Confedera

We have reached

a grander

To-day the State and National governments are

mere agencies to conduct the business of the real sovereign, the people of the

United States.

It certainly will

be conceded by every one that the United States, from what

ever standpoint you may view it, whether of power, wealth, population, influence

in World politics, or the races of which it is the combined product, is certainly a


very different proposition from the comparative

handful of people, who made up

the colonies of Great Britain, asserted their independence,

Confederation, and in

1787 sent

delegatesto

a convention,

adopted

Articles of

held in Philadelphia,

for the purpose of amending those Articles of Confederation. That convention,


whose_rnandat;e was to amend only the Articles ofConfederation, which articles
declaieij

that they could be changed only by consent of all the thir

bn_thZ=.irIface

teeh S.t..at.es::_by.whf3:h they were adopted: that convention, which has been glori
fied.'1ri.Arrieric.ari history as the best and wisest and greatest assemblage of states
men that ever framed a government;
circumstances

being of opinion that under the changed

of the country and needs of the people, those old articles of confed

eration were worthless, frankly avowing that they were exceeding their authority,
cast off the limitations under which they were elected, and proceeded to frame an

entirely new and radically different form of Constitution, and declared that
be operative

should

It

it

when accepted by nine States.

was a revolution, a peaceful revolution, because their decision was wise

and was afterwards approved

Const. Lim.,

Ed. p.

by the people and the States.

See

Cooley on

9.

But it was a fateful precedent, and is so important an event in our Constitu


tional history, that

Art.

XIII:

I will

quote the language of the Articles of Confederation.

Every State shall abide by-the determinations of the United States,

in Congress assembled, on all questions which by this confederation are submitted


by
to them. And the Articles of this Confederation shall be inviolably observed
any time
every State, and the Union shall be perpetual; nor shall any alteration at
hereafter be made in any of them; unless such alteration

of

be agreed to

in a Congress

State.
the United States, and be afterwards confirmed by the legislatures of every

These Articles of Confederation were the Constitution Of the United States, under
which the Convention of 1787 was elected. , That convention refused to be bound

by the limitation which that Constitution imposed upon its action, set it aside
ratified, not
and declared that the new Constitution should be operative, when
by the legislatures of thirteen States, as provided by Art.

XIII,

above quoted, but

by Conventions of the people of nine States.


That the Convention of 1787 was exceeding the powers deputed to it, by the
authority under which it was elected, was a fact not only recognized by the people,
but avowed and defended by the makers of our Constitution: Fed. p. 313, Ed.

Mr. Madison, defending the convention against the charge of exceeding


its powers, says,In one particular, it is admitted that the Convention have de
1871.

Instead of reporting a plan requiring


the confirmation of all the States, they have reported a plan which is to be con
firmed, and may be carried into effect, by nine States only.
parted from the tenor of their commission.

This precedent establishes the position that the people of the United States,
when assembled in Convention for the purpose of amending their Constitution
Constitution,
are not bound by limitations. imposed upon their delegates, by the
Constitution,
under which they were elected, but may proceed to adopt a new
in the
and submit it for ratification in a manner, different from that prescribed
For example, Article V. of our Constitution provides that
former Constitution.
the
amendments shall beyvalid, when ratified by the legislatures of three-fourths of
But a convention, following
States, or by Conventions in three-fourths thereof.
the precedent set by that of 1787, may declare its new Constitution to be valid
when ratified by the legislatures of a majority, or by Conventions held in a ma

jority of the States; or by Conventions held


the population of the United States.

.n

States containing three-fourths of

Perhaps, indeed, they would not submit

it

for ratification, but declare it operative.


There are, indeed, many striking historical precedents in favor of putting a
For instance,
new Constitution or Government in operation without ratification.
take the only other precedent in the history of the United States.

of

1776 was a

Convention of the people.

It

framed

a new

The Congress

government,

and

promptly put it into operation, without submission to the people or States for
See Cooley on Const. Lim., 7 Ed. p. 8.
ratification.
I

4333362

In

1660 a

Convention assembled in England completely changed the Govern

ment, and asked no ratification by the people, or otherwise.

Again in

1689 a

Convention was summoned by Vl/illiam, Prince of Orange,

which proceeded to change the Constitution without asking the assent of any one.
In 1791 the Constituent Assembly of France adopted a Constitution, which
abolished royalty, the privileges of the nobles, and completely
government,

The National Convention of France in


and did not submit

revolutionized

the

it without ratification.

and promulgated

1793 adopted another

Constitution,

it for ratification.

Only six years ago the Convention of the State of Virginia adopted a new
Constitution, which was promulgated as the Constitution of the State, without
ratification. The previous Constitution of that State, adopted in

1869, and ap

proved by the vote of the people, provided, as follows, in the Article concerning

Provided that no revision or amendment shall be made,

amendments or reviews:

which shall deny or in any way impair the right of suffrage, or any civil or political
by this Constitution, except for causes which apply to all per
sons and classes without distinction.
This proviso was, of course, intended
for the protection of the negroes in their civil and political rights, and the equal
right of suffrage, then for the first time conferred on the colored people in Virginia.
The Virginia Convention totally changed the basis of suffrage, paying little
or no regard to the foregoing provisions or li-mitations.
After adopting a Constitution they proceeded to promulgate and put it in
force without submission or ratification, and their action was sustained by the
Virginia Reports.
Supreme Court of Appeals, in Taylor's case.
right,

as conferred

The prevailing doctrine in this State seems to be that one generation, or the
people of one century, cannot bind the people of another generation or century by
Constitution or legislation anv longer than until a Convention is lawfully assem
bled to change the government; and that when such a Convention is assembled,
its powers are not limited by the provisions of the former Constitutions. This
doctrine is confirmed by the only Convention, which in the United States ever
submitted

a new

Constitution for ratification by

The Convention of
as to

1787, as

popular vote.

I have shown, refused to recognize the limitations

ratification, imposed upon it, by Art.

XIII

of the Articles of Confederation,

That Con
which required the confirmation of the legislatures of every State.
vention decided that the new Constitution should be submitted to the people, and
when

ratified by the people of nine States,

Madisons letter).

it should

be

effective:

(See

Mr.

Many State Constitutions have in this country been adopted by Conven


tions, and put into operation,
as stated

without ratification, to the number of fifty-seven,

by Jamison on Conventions.

Would it not, indeed,


living in this country in

little absurd if the four millions of people,


could by a law or written Constitutiorf, prohibit the

seem to be a

1787,

one hundred millions of people of the United States, living one hundred and twen

ty-five years later, from changing their government; that thirteen little States, in
a raw unsettled country, and condition of society, could make laws or Constitu
tions, to bind 48 or 46 great States, living in the midst of the most wonderful
changes, the grandest discoveries, the most complex conditions,

and the highest

civilization ever imagined by the human brain; that they could make it obligatory
upon such a nation, never to change those forms of government, or that Constitu

Yet that
tion; except in a manner prescribed by their dead and gone ancestors?
very Convention of 1787, which repudiated the authority, or binding force, of
Article XIII of the Confederation, has sought in Art. V of their Constitution,
to bind their descendants, and prohibit them from making amendments or

a new

Constitution; except under limitations which they chose to impose.


Article V of our Constitution is as follows: The Congress, whenever both
houses shall deem it necessary, shall propose amendments to this Constitution, or
on the application of two-thirds of the several States, shall call a Convention for
proposing

amendments;

which, in either

case, shall

be valid to all intents and

purposes, as part of this Constitution, when ratified by the Legislatures

fourths of the several States, or by Conventions in three-fourths

of three

thereof, as the

one or the other mode of ratification may be proposed by the Congress.

Pro

vided that no amendment, which may be made prior to the year 1808 shall in any
manner affect the first and fourth clauses in the ninth section of Article

I; and that

no State, without its consent, shall be deprived of its equal suffrage in the Senate."

It

does seem a little curious that such a body of wise statesmen as composed

the Convention, which framed the Constitution of the United States, should sup

that they could bind a future Convention, and limit its powers, in respect to
that very question of the mode of ratification, as to which they were demonstrat
pose

ing, that they could not be bound by the Constitution under which they were
elected.

If

then a Convention should be called by Congress to propose amendments

to our Constitution, and


vention of 1787,

it should follow the precedent established by the Con

it may decline to submit the new Constitution to the Legisla

tures of the several States, but may adopt some other mode, for instance, it may

submit it to a vote of the people, at large, of all the States.

It might

cause, what

the French call a plebiscite, or vote of all the people to be taken, and declare that

if a majority of all the people approve, it shall be declared operative; or it might


submit it to Conventions of the people, to be held in each State, and declare it ef
fective when approved by the people of a majority of the States.

Would it not be wise then for those States, which are

so

light heartedly ask

ing for a Convention, to consider seriously, what might be its potentialities, and
how their interests might possibly

'

be effected?

Amongst the twenty-eight, which Mr. Tuller says, have adopted such resolu
tions,

I find such little States

as Delaware,

Idaho, Montana and, Heaven

save the

Nevada, with 50,000 people, not enough to elect


mark, the diminutive Nevada.
a representative in Congress, now represented in the Senate by as many Senators
as the nine

millions of people of the great State of New York, wants to change the

mode of electing Senators, so that they shall be elected by the people, and repre

Have the people of Nevada never had an

sent the people, instead of the States.

idea that a Convention might say, if the Senators are to represent the people, let
the number from each State be based upon its population; instead of having two
from each State, let there be one Senator for each million of population.

Such a

change would be enormously popular in the great States, which are chafing under
the existing inequality. When we think of the revolution, which might be wrought

Convention,

no discretion about calling

is

it not

a bold

thing to say that Congress has

of the States, as those cited by


upon such requests
'

Mr. Tuller?
In dealing with this novel question, the first thing to
gress has never given an

interpretation to this Article

be noted

is

it,

by the action of such

that Con

It

of our Constitution.

has never legislated upon this subject, nor provided under what circumstances
or how

it

Convention could be called, upon what basis the people should

be represented,

should be constituted.

Mr. Tuller says, when three more States apply, Congress will have no discre
The very first thing Congress will have to do,
be, to exercise its discretion

if

tion, but must order the Convention.


three more States apply, will

or judgment in determining,

whether

the requisite

number of States have applied, in manner and form, as required by Article

V,

above quoted.

Mr. Tuller cites the resolutions of Louisiana, Kansas, Wisconsin and Pennsyl
vania.

Four out of twenty-eight.

Two out of the four, in my opinion, have not

language of Article

is

passed resolutions in accordance with the requirement of the Constitution.


as

The

follows: The Congress on the application of two

thirds of the several States shall call

Conventon for proposing amendments.


Not for proposing one amendment, as asked by Pennsylvania and Wisconsin,

to change the mode of electing United States Senators; but for proposing amend
ments, as asked for by Louisiana and Kansas.

insert here the resolutions passed

by the four States, in order to show precisely what each State has asked:

L0 UISIANA.
Whereas we believe that Senators of the United States should be elected directly
and
Whereas to authorize such direct election an amendment to the Constitution of

the voters;

by

United

the

States

Whereas

it clear

made

the

is necessary; and

failure of

Congress

to

submit such amendment

that the only practicable method

to the States

has

of securing a submission of such amend

is through a constitutional convention, to be called by Congress upon


the application of the Legislatures of two-thirds of all the States: Therefore be it
Resolved by the general assembly of the State of Louisiana, That the Legisla
ture of the State of Louisiana hereby makes application to the Congress of the United
States, under Article V of the Constitution of the United States, to call a constitu
tional convention for proposing amendments to the Constitution of the United States.
ment to the State

That this resolution, duly authenticated, shall be delivered forthwith to


Senate and Speaker of the House of Representatives of the United
the
States, with the request that the same shall be laid before the said Senate and House.
Sec. 2.

President of the

KANSAS.
Whereas there is a wide-spread and rapidly growing belief that the Constitution
United States should be so amended as to provide for the election of the United
of
States Senators by direct vote of the people of the respective States; and
the

Whereas other amendments

to the

United States Constitution are by many in

telligent persons considered desirable and necessary; and


Whereas the Senate of the United States has so far neglected

to take any action


the
manner
United
States Senators,
changing
electing
of
of
although favorable action upon such proposed change has several times been unani
mously taken by the House of Representatives: Therefore be it

whatever upon the matter

Resolved by the House of Representatives of the State of Kansas (the Senate


concurring therein), That the Legislature of Kansas, in accordance with the provi
sions of Article V of the Constitution of the United States, hereby apply to and request

the Congress

amendments

of the United States to call a convention


Constitution of the United States.

for

the purpose

of proposing

to the

PENNSYL VANIA.
Whereas a large number of State Legislatures have at various times adopted
memorials and resolutions in favor of election of United States Senators by popular
vote; and
Whereas the national House of Representatives has on four separate occasions,

within

recent years, adopted resolutions

in favor of this proposed

change

in

the method

United States Senators, which were not adopted by the Senate; and
V of the Constitution of the United States provides that Con
gress, on the application of the Legislatures of two-thirds of the several States, call a
convention for proposing amendments, and believing there is a general desire upon the

of

electing

Whereas Article

part of the citizens of the State of Pennsylvania that the United States
should be elected by a direct vote of the people: Therefore be it

Senators

Resolved (if the House of Representatives concur), That the Legislature of the
State of Pennsylvania favors the adoption of an amendment to the Constitution which
shall provide for the election of United States Senators by popular vote, and joins with
other States of the Union in respectfully requesting that a convention be called for the
purpose of proposing an amendment to the Constitution of the United States as pro
vided for in Article V of the said Constitution, which amendment shall provide for a
change
chosen

in
in

the present method

of

electing United States

each State by a direct vote

of

Senators so that they can

be

the people.

WISCONSIN.

V of the Constitution of the United States provides that the


two-thirds of both Houses shall deem it necessary, shall propose

Whereas Article
Congress,

whenever

amendments

this Constitution,

or on the application of the Legislatures of two


thirds of the several States shall call a convention for proposing amendments, which'in
either case shall be valid to all intents and purposes as part of this Constitution when
to

ratified by the Legislatures of three-fourths of


three-fourths thereof, etc.; and

the several

States or by convention

in

Whereas the House of Representatives of the Congress of the United States has
on four separate occasions passed bya two-thirds vote a resolution proposing an amend
ment to the Constitution providing for the election of United States Senators by direct

of the people; and


Whereas the United States Senate has each time refused to consider or vote upon
said resolution, thereby denying to the people of the several States a chance to secure
this much-desired change in the method of electing Senators; therefore be it
Resolved by the Senate and Assembly of the State of Wisconsin, That, under

vote

the authority of Article V of the Constitution of the United States, application is hereby
made to Congress to forthwith call a constitutional convention for the purpose of sub

mitting

to the States

for ratification an amendment

to the

Federal Constitution pro

for the election of United States Senators by direct vote of the people.
Mr. Tuller may say the trifling difference between amendments, and one
But it is of all the consequence in the
specific amendment, is of no consequence.
viding

world, and

goes to the very

call a convention,
ment.

root of the question: for the Congress has no power to

whose powers would be limited to proposing a specific amend

The conventioh, which Congress would have to call, would have unlimit

ed powers to propose amendments,

and even to make a new Constitution.

Mr. Tuller and others may take

Of

different view, but it is just here that the

Congress must use its discretion; and if

it agrees with my position, it would not

course,

call a convention and as that would be a question purely within

the

province

of

Congress to decide, its determination could not be reviewed by any court.

Again, when Congress comes to consider this very grave question, it will pro
bably take the view that Article

had in contemplation that two-thirds of the

States should at, or about, the same time concur in asking a convention.

It

appears from

Mr. Tullers article that in this

case the

applications of twen

ty-eight States have been made within a period of eleven years.


Suppose now, a change takes place in public opinion, that this matter of elec

tion of Senators is dropped, and twenty or thirty or fifty or one hundred years
hence, an agitation is carried on for a constitutional amendment to prohibit poly
Three more States ask for a conventon to propose an amendment for that

gamy.

Would Congress

purpose.

be obliged to add those three to the

Is not this another

decide that the requisite number of two-thirds had applied?

calling for the exercise of

question

twenty-eight, and

a wise discretion?

Suppose again, that some of the twenty-eight States, gaining more light upon
the great potentialities of a convention,

Would it not be necessary for Congress to exercise some discre

formerly passed.
tion in determining,
number who

If it

should adopt resolutions rescinding those

whether or not, to count the rescinding

have

States, amongst the

applied?

that twenty-eight States have at different times, andin different


forms, applied to Congress to call a convention, is it not the duty of Congress to
It should pass a law, stating plainly; first, in
legislate upon this subject?
be true

what form an application should

be made

by a State; second, in order to be


within how

sure that two-thirds of the States do concur in desiring a convention,

many years the requisite number shall pass their resolutions,

and send them to

such officials as may be designated to receive them; third, whether if a State has
made its application, it may be withdrawn before the period for receiving the ap

plication shall elapse.

A similar law should be passed, providing for the ratification of amendments


proposed by Congress.

It

seems to be

thought now, that if three-fourths of the

States shall ratify the pending amendment, concerning an income tax, at any time
during the next thousand years, it will become a part of the Constitution.

It

is most respectfully submitted that this ought not to be, if it be, the law.

The States should

be required

to give their approval within some definite

time

and during that time any State should be allowed to reconsider the subject, and

withdraw

its assent.

The assembling of conventions to change the Constitution, and

the.

ratifica

tion by the States of amendments, proposed by the Congress, are subjects of too
much importance

to be left in their present loose and uncertain condition.

In conclusion I wish it to be understood that I am not advocating any action


o'n the

part of a convention, by which the provisions of our existing Constitution

may be

set aside,

a convention

but merely expressing my opinion,

as to

what might be done by

convoked for the purpose of amending the Constitution.

JAMES

H.

DOOLEY.

James Henry Dooley (January 17, 1841 November


16, 1922) was a Virginia lawyer, business leader,
politician, and philanthropist based in Richmond
during Reconstruction and the Gilded Age. He was a
key figure in construction of the Richmond and
Alleghany Railroad, and represented Richmond in the
Virginia House of Delegates.

James Henry Dooley was the son of Irish


immigrants John and Sarah Dooley. He was born
in Richmond, Virginia, one of nine children. His
father, John Dooley, Sr. was a successful hat
manufacturer. The Dooley family was prominent
in the community and the parish of St. Peter's
Roman Catholic Church.
Dooley attended Georgetown College (now
Georgetown University) and became the first
student to rank at the head of his class during each
of his four years, graduating in 1860. Soon after,
James and his brother John enlisted in the
Confederate Army, joining their father's unit, the
First Virginia Infantry. James Dooley was
wounded at the Battle of Williamsburg during the
Peninsula Campaign in May, 1862. He was
captured and confined for a short time. Upon his
release, Dooley worked in the Confederate
Ordnance Department in Richmond. After the
war, Dooley completed a Master of Arts degree at
Georgetown, then returned to Richmond.
During the postwar years, as Richmond began to rebuild its business district, Dooley began a
legal career. Upon his father's death in 1868, James Dooley started using his father's honorific
"Major," although he himself never attained that rank.[1] The following year, Dooley married
Sarah ("Sallie") O. May of Staunton, Virginia in Augusta County, although she remained an
Episcopalian. Dooley was elected to the Virginia General Assembly and served from 1871 to
1877.
Dooley also speculated in real estate and became involved in railroads, steel and banking. In
1880, Dooley joined the board of directors of the Richmond and Danville Railroad, which soon
expanded into a multi-state system of over 3,000 miles and in 1894, became the basis of the
Southern Railway. Dooley helped this expansion during his terms on the boards of directors of
the Richmond and West Point Terminal Railway and Warehouse Company, and became
President of the latter. In 1889, Dooley helped found the Seaboard Air Line Railroad, and
chaired its compensation committee in 1900-1902. Dooley also headed the Richmond and
Allegheny Railroad company, which built tracks along the towpaths of the defunct James River

and Kanawha Canal. The C&O purchased the Richmond and Allegheny Railroad and integrated
them into the C&O in 1889 [2]), and then Dooley served as a director of the Chesapeake and Ohio
Railway.
In 1893, Major Dooley had a large stone mansion built on a large estate overlooking the James
River in the western portion of Richmond, which he and his wife named Maymont. By 1912 the
Dooleys also completed an enormous mountain retreat, Swannanoa, in the Blue Ridge Mountains
at Rockfish Gap near Waynesboro, Virginia in Nelson County.
According to Richmond's Maymont Foundation, "Major Dooley's leadership of various civic
endeavors runs as a continuous thread through the history of Richmond, from the early 1870s
through the early 1920s." He succeeded his father as a board member of St. Joseph's Orphanage.
In 1881, he brought together Catholics and Episcopalians to raise money for relief in Ireland.[3]
Dooley also served on the board of the Medical College of Virginia and, in 1919, gave the funds
to construct the Dooley Hospital (now part of Virginia Commonwealth University).
Major Dooley died in Richmond at the age of 81. He was initially buried with his former
Confederate comrades in Hollywood Cemetery, and later reinterred with his wife Sallie in a
mausoleum at Maymont.
James Dooley is still considered one of the largest donors in the history of the Diocese of
Richmond.[4] His family had long supported Catholic causes. His father (the original Major) had
supported St. Joseph's Orphanage; his brother John attended Georgetown Seminary but died in
1873 before ordination; and his sister Sarah entered the Visitation monastery in Richmond. The
Dooleys, who were themselves childless, left a record 3 million dollars to the St. Joseph's
Orphanage, which permitted it to build "St. Joseph's Villa" adjacent to Maymount on the North
Side of Richmond in Henrico County.[5] The charitable organization continues serving families
and children today.
Major Dooley left their home, Maymont, to the City of Richmond, to be used as a park and
museum after Mrs. Dooley's death. Today, Maymont Park is a major Richmond attraction on the
James River, with a museum, formal gardens, native wildlife exhibits, nature center, carriage
collection, and children's farm and petting zoo.
Mrs. Sallie Dooley gave Swannanoa to her husband's two remaining sisters upon her death, and
while it subsequently changed ownership several times, the mansion remains, and is listed on the
National Register of Historic Places. She also gave a half million dollars to build the Richmond
Public Library as a memorial to her husband.