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CHAPTER VIII

HOW THE CONSTITUTION DEVELOPS

1. THE LINES OF GROWTH. A state constitution develops and changes in various ways. (1) Actual changes in the text of the written constitution are made only by means of the formal processes of revision and amendment. (2) It is very commonly known, however, that even without formal changes of this nature, a constitution develops through the process of interpretation by the courts. (3) Still more subtle and less tangible are the transformations brought about by gradual changes in customs and traditions with reference to the application of the constitution, and even by changes in the meanings of words which make up the text. Judicial decisions, changes in political practices and in the connotation of constitutional terms, often bring about results which are contrary to the wishes and interests of considerable groups of people. Any decision of the courts which interprets the constitution contrary to the desires of any large number of voters may cause a popular demand for a change in the written instrument. Numerous amendments to the Minnesota constitution can be traced directly to an unpopular decision of the supreme court of the state. On the other hand the people have insisted upon changing many clauses of the constitution which had simply become out of date.

2. REVISION BY A CONSTITUTIONAL CONVENTION. The very first section of the Minnesota constitution makes the assertion that “Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, inodify, or reform such government whenever the public good may require it." This sweeping generalization would seem to go almost to the point of justifying revolution by “the people,” yet it should be carefully observed that the same instrument provides in article 14 the only legal and constitutional means of making formal changes in the constitution. Two separate and distinct methods are there provided, one for "revision" of the constitution through the instrumentality of a constitutional convention, the other for "amendments" to be proposed by the legislature and ratified by the voters. These two methods require separate discussion.

Section 2 of article 14 makes the following provision with reference to revision of the constitution :

Whenever two-thirds of the members elected to each branch of the legislature shall think it necessary to call a convention to revise this constitution, they shall recoinmend to the electors to vote, at the next election for members of the legislature, for or against

a convention; and if a majority of all the electors voting at said election, shall have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The convention shall consist of as many members as the house of representatives, who shall be chosen in the same manner, and shall meet within three months after their election for the purpose aforesaid.

This provision has been part of the constitution from the beginning. It outlines a slow and cumbersome process of revision conforming well to the more conservative ideas upon this point prevalent in 1857, and designed to prevent effectually any undue haste in the revising of the framework of the government. It provides that one legislature may submit to the voters "at the next general election for members of the legislature” the simple question of whether a constitutional convention shall be called. Only in case "a majority of all the electors voting at said election shall have voted for a convention" shall the legislature proceed to the next step of providing for the election and holding of the convention. At the time when this provision was adopted elections were annual and the legislature met each year; it would have been possible at that time, therefore, for a convention to have been convened within less than two years after the legislature had proposed the matter to the voters. Today the process will take a considerably longer time. Let us suppose that the legislature elected in 1920 decides to take up this matter. It assembles in January, 1921, and sometime before its adjournment in April it passes a resolution submitting the question to the people. The question will not get to the voters until November, 1922, and if at that time the requisite majority of the voters can be obtained, the next legislature is required to proceed to provide for the convention. Early in 1923, therefore, an act would be passed for the holding of the elections, which could hardly come before June 1, and the convention would then be required to meet on or before September 1, 1923. If it set to work at once and pursued its task diligently it could hardly be ready to submit anything to the voters until the spring of 1924.

Only one attempt has been made by the legislature up to this time to invoke this method of changing our constitution. This was in 1896, and at that time the people saw clearly how difficult it is to get "a majority of all the electors voting" at a general election, particularly in a presidential year, to express themselves in favor of any such proposal. At this election the voters were confronted with the duty of settling nine separate questions by referendum vote. Six of these were proposed constitutional amendments, submitted under the original amending clause of the constitution which made the simple requirement that "a majority of the voters present and voting"

1 Sess. Laws 1895, ch. 1. Governor Austin proposed the holding of a convention in 1870 and again in 1871, and no doubt the question has been discussed at other times. See Minn. ex Docs., 1870, Governor's message, I, p. 32; ibid., 1871, Governor's message, I, p. 26.

on any proposed amendment should be sufficient to ratify it. Two were referenda upon legislative questions and one the referendum upon calling a constitutional convention, all three of which required for their adoption the affirmative vote of a majority of all the voters voting at the election. The six amendments related to very important matters: the right of aliens to vote, conferment of home-rule powers upon cities, establishment of a board of pardons, eminent domain proceedings, the taxation of large corporations, and the investment of permanent school funds. The referenda related to the transfer of income from the internal improvement land fund to the road and bridge fund, and to the taxation of railroad lands. The six amendments, requiring but a bare majority of the votes cast upon each amendment, were all adopted. The affirmative votes ranged from 97,980 to 163,694. All would have failed if a majority of the votes cast at the election had been required.

On the other three questions the vote was as follows:

Total votes cast at the election

343,319

171,660

Necessary to the adoption of any of the following proposals

Yes, 96,308
Shall there be a constitutional convention?

No, 70,568

Failed

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On the basis used at that time for determining the passage of constitutional amendments, all of these three propositions would have carried. Actually, one carried and two failed. Yet the six amendments were all adopted and made fundamental changes in the constitution.

From what has been said it will be seen that the vote requirement which is a condition precedent to the calling of a constitutional convention in Minnesota is a difficult obstacle to overcome. It must be said, however, that once this obstacle has been surmounted the path to a revision of the constitution is fairly straight and easy. The constitution lays down no restrictions upon the convention beyond those which state its size and the mode of its election and the requirement that it shall meet within three months after the election.

2 Sess. Laws 1895, ch. 168, 377. 8 See table, pp. 281-82.

* Only one of the amendments received a greater vote than the proposal to transfer the internal improvement funds to the road and bridge fund. On the other hand more electors voted against the constitutional convention than voted against any of the amendments. The law for the taxation of railroad lands which was approved by the voters was later declared unconstitutional, Stearns o. Minnesota, 179 U. S. 223; 21 Sup. Ct. Rep. 73; 45 L. Ed. 162, (1900).

Once constituted, the convention becomes practically master of the situation. It may sit as long as it pleases and regulate its own organization and procedure. It may write an entirely new constitution or it may propose amendments to particular clauses or it may even decide that no change is expedient and submit nothing. Whatever it has to propose, it may submit to the voters at either a general or a special election, and it may itself determine the majority which shall be required for the ratification of its proposals.

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3. THE AMENDING PROCESS. There have already been several occasions to refer to the fact that from 1858 to 1898, Minnesota had, of all the states, the simplest process for amending its constitution. It was easy to get amendments proposed and easy to get them ratified. Indeed, following the election of 1896, discussed above, many came to the conclusion that a bare majority of the voters voting upon an amendment was too low a requirement for so serious a matter as a change in the fundamental law of the state. A movement was begun, therefore, to amend the amending clause.? The Legislature of 1897 proposed that amendments should be submitted only at general elections and that "a majority of all the electors voting at said election" should be required to ratify amendments. This proposition went before the voters in November, 1898, and it was ratified by the following vote :S

For the amendment
Against the amendment

69,760
32,881

Total votes for and against

102,641

The total vote at the election was 251,250. Thus less than twenty-eight per cent of the voters decided, by their affirmative votes, that no future amendment should be adopted unless over fifty per cent of all the voters at the election should favor it. Had the amendment itself applied to this election, it would have failed of adoption by 55,866 votes.

Under the present constitutional provision, amendments are just as easy as ever to propose. The 1898 amendment made no change in this respect. Of all the states Minnesota has today, and has had since 1858, the simplest method of proposing constitutional amendments. The Minnesota constitution requires merely "a majority of both houses of the legislature," and this does not mean a majority of all members elected but simply of those present

• Hoar, Const. Conven., pp. 149-213, passim., espec. pp. 164, 184, 213; Dodd, Revis. and Amend. of St. Const., pp. 72-117. But see also Jameson, Const. Conven., pp. 300-489, passim. The latter author takes a narrower view of the powers of constitutional conventions.

. See pp. 100, 129-30. Cf. Dayton v. City of St. Paul, 22 Minn. 400, (1876). This decision settled beyond any doubt the meaning of the original amending clause.

? It has been said that the liquor interests promoted this change in order to prevent the adoption of a constitutional amendment prohibiting the liquor traffic. The resultant amendment has, therefore, been called at times “the brewers' amendment."

* Sess. Laws 1897, ch. 185; Leg. Man. 1899, p. 504.

and voting, a quorum being present.' Seven states require a majority of the members elected. Twenty-two states require a two-thirds or three-fifths vote, either of a quorum or of the members elected. Fourteen states require that the amendment be approved by two successive legislatures before it may be submitted to the voters. This accounts for forty-four states. Of the remaining four, New Hampshire permits amendments to be proposed only by a constitutional convention; Delaware amends her constitution by the action of two successive legislatures without any referendum to the people; Mississippi and South Carolina require a two-thirds vote of each house on each day for three several days, and two-thirds of the members elected to each house, respectively, and in both of these states, after the voters have approved the amendment, the legislature must again pass it before it becomes part of the constitution 10

When it comes to the matter of ratification of amendments, however, the importance of the change made in 1898 becomes evident. A comparison of the results obtained from 1858 to 1898, inclusive, with those obtained from 1900 to 1920, inclusive, shows what a striking change has been brought about in the matter of the adoption of amendments.

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The situation depicted in this table hardly needs further comment. It should be said, however, that seventeen of the amendments adopted in the earlier period probably received a majority of all the votes cast at the election, showing that the present requirement has never been impossible of attainment. On the other hand the defeat of seventy-seven per cent of the amendments in the later period has not been due to the fact that the legislature has proposed unpopular measures. Every one of the forty-eight voted upon from 1900 to 1920 has received a majority of all the votes cast thereon. It does not follow, however, that they would all have been adopted under the old system. The opposition to amendments is less active today because it is known that only an aroused public opinion can adopt an amendment. Many voters would vote “no” if this were necessary, but they know that failure to vote on the amendment has the effect of a negative vote. The number of such voters is impossible of determination.

1

See Green v. Weller, 32 Miss. 650; (1856); State v. McBride, 4 Mo. 303; 29 Am. Dec. 636; (1836). It is true that section 13 of article 4 of the constitution requires that "No law shall be passed unless voted for by a majority of all the members elected to each branch of the legislature," but it has been decided that the proposal of a constitutional amendment is not legislation. Hollingsworth v. Virginia, 3 Dall. 378; 1 L. Ed. 644, (1798).

10 See Index Dig. of St. Const., pp. 10-20, passim.

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