to reduce the influence of petty local interests in the constitutional convention. The addition of delegates chosen by congressional districts and especially of those chosen in the state at large ought still further to enhance the influence of state-wide as contrasted with merely local considerations. This result seems indeed to have been attained in the New York conventions of 1894 and 1915.

There have also been attempts in recent years to regulate or so far as possible to exclude ordinary partisan influences. The Pennsylvania convention of 1872 was elected under a system of limited voting by which it was intended that the minority party should be assured a due share of the delegates. Each voter was permitted to vote for only fourteen delegates at large, although twenty-eight were to be elected, and for only two senatorial district delegates, where three were to be elected. Consequently, the dominant party was not able to elect much more than half the total number of delegates at large and two-thirds of the district delegates. Furthermore, a provision that one-third of the delegates might require the separate submission of any proposed amendment afforded additional protection to the minority party. More recently, since the introduction of the system of direct nominations, several states have proposed plans for the nomination of delegates at non-partisan primaries and their election without any party labels, obviously suggested by the systems of non-partisan judicial nominations and elections. The Massachusetts convention of 1917 is to be elected under such a plan. The Ohio convention of 1912 was also chosen so as to eliminate the regular partisan divisions. In general, the personnel of constitutional conventions is markedly superior to that of the ordinary legislatures. The importance of the work to be done attracts able men to the conventions, and the publicity of their proceedings puts delegates on their best behavior. Constitutional conventions have by no means been generally free from partisanship, but partisan influences have usually been confined to their legitimate field, the formulation of a program of revision and the recommendation of appropriate amendments for adoption by the electors.

The procedure of constitutional conventions is also generally modeled upon that of the lower houses of the state legislatures.

Thus, the New York convention of 1915 was dominated by the president, the committee on rules, and the recognized leaders of the dominant party in precisely the same manner as the legislative assembly. In other states the ordinary committee system generally prevails. But the greater publicity that attaches to the work of conventions makes their actual procedure more deliberate than that of legislatures. Moreover, the limitations upon the length of sessions which seriously impair the efficiency of so many state legislatures do not apply to conventions at all. Although conventions have to finish their work in season for submission to the electors at the next election, there is ordinarily time for due deliberation. Where constitutional revisions are submitted to the electorates en bloc there is more opportunity for the evasion of responsibility, than where each proposed change is submitted separately. The practice in this respect is not uniform. Some conventions, indeed, like that of New York in 1915, submit a few specially important or highly controversial proposals separately and all others en bloc. The latter form of submission, however, offers opportunities for log rolling that are absent where each proposed change must be separately submitted.

More important is the effect of the strict limitation of the functions of conventions. Though the conventions have power to make any recommendations they please to the electors for adoption, and though in practice they do recommend ordinary legislative measures in ever increasing quantity, they are largely free from the kind of business which is chiefly responsible for the discredit into which the ordinary legislatures have fallen. They have little occasion to deal with private and local measures. They do not make appropriations at all. Their patronage is slight, and nothing of importance can be done without the approval of the electorates. Under these circumstances delegates can concentrate their attention upon matters of constitutional and legislative policy, and decide questions more strictly upon their merits than is ordinarily possible in the legislatures.

WORKING OF THE CONVENTION SYSTEM

It is not surprising, therefore, that the constitutional convention, considered as an organ of state government, has on the whole been

as conspicuously successful as the legislature has been unsuccessful. There have been comparatively few instances where the work of conventions has been totally rejected by the electorates. Notable instances of this kind were the revisions submitted by the Massachusetts convention of 1853, the Illinois convention of 1862, and the New York conventions of 1867 and 1915. Ninetenths of the general revisions submitted to the electorates for approval have been accepted by the majority of those voting thereon. Conventions which have submitted their proposed amendments separately have also fared well at the hands of the electors. The Ohio convention of 1912 considered five hundred and two questions and finally submitted forty-one separate amendments to the electorate. Thirty-three of these were adopted and eight were rejected by a majority of those voting thereon. The New Hampshire convention of the same year submitted twelve propositions to the electors. All of these were approved by a majority of those voting thereon, although eight failed of adoption by the people because they failed to receive the two-thirds majority required for adoption under the constitution of that state. This record compares favorably with that of the legislatures in the submission of amendments to the electorates. Conventions have sometimes refused to submit their work to the electorates when popular approval by the existing electorate seemed likely to be withheld. For example, several recent conventions in southern states, bent on disfranchising negro voters, declared their revisions effective without popular approval. Other conventions, bent on extending the suffrage, have submitted their work to electorates including the new voters whom the convention proposed to enfranchise. Without doubt, in the absence of constitutional provisions clearly defining the powers of a constitutional convention, there is always a possibility of arbitrary action by such bodies. But where the practice of submission to the existing electorates is definitely established, the popular veto appears to be an adequate check against the usurpation of power by conventions.

The success of the constitutional convention raises the question whether the legislatures might not do more satisfactory work if their organization and procedure more closely resembled that of the conventions. The legislatures of several of the states

in the Swiss Confederation are organized in much the same manner as the constitutional convention. In Berne, for example, the legislature consists of a single house, elected for four years. This house has broad legislative powers, subject to the referendum at the option of a certain proportion of the electors. Proposals to amend the constitution, however, must in any case be submitted to the electors for their approval, as in the American states. In practice comparatively few measures have to be submitted to the electorate for approval, unless there is a sufficient demand for popular review, because the constitution contains little matter of an ordinary legislative character. A constitutional convention in Berne is chosen in precisely the same manner as the ordinary legislature. When the people wish to choose a convention, they simply recall the whole legislature and choose a new one. The members of the recalled legislature are eligible for reëlection. One effect of this arrangement is to provide more continuous popular control over the constitution than can be exercised in this country through occasional conventions meeting only at specified intervals or when the legislature can be induced to submit a call to the electorate. Another is to maintain a higher standard for the personnel of the legislature than can be maintained for the members of American legislatures with their limited legislative powers and excessive burden of non-legislative duties.

Whether or not in the American states a single unicameral legislative body could be safely entrusted with all the powers of both constitutional convention and legislature would depend mainly upon two factors. The first is the extent to which the legislatures can be relieved of the excessive burden of nonlegislative duties which now so encumber their deliberations. The second is the extent to which the power of popular review over legislation can be effectively exercised by the state electorates. The relief of the legislatures from non-legislative duties is contingent upon the development of independent and reliable administrative agencies. The effective exercise of the power of popular review is contingent upon the development of satisfactory methods for direct legislation, subject to suitable restrictions, by the electorates.

CHAPTER XIII

DIRECT LEGISLATION BY THE ELECTORATES

MANY arguments have been put forth in support of direct popular participation in law-making, but they are all reducible to not more than two. The nature of these two general arguments was well explained by John Stuart Mill, when discussing the criterion of a good form of government. "The first element of a good government," he declared,' "being the virtue and intelligence of the human beings composing the community, the most important point of excellence which any form of government can possess is to promote the virtue and intelligence of the people themselves. The first question in respect to any political institutions is, how far they tend to foster in the members of the community the various desirable qualities. . . . The government which does this the best has every likelihood of being the best in all other respects, since it is on these qualities, so far as they exist in the people, that all possibility of goodness in the practical operation of the government depends. We may consider then as one criterion of the goodness of a government, the degree in which it tends to increase the sum of good qualities in the governed, collectively and individually; since, besides that their well-being is the sole object of government, their good qualities supply the moving force which works the machinery. This leaves, as the other constituent element of the merit of a government, the quality of the machinery itself; that is, the degree in which it is adapted to take advantage of the amount of good qualities which may at any time exist, and make them instrumental to the right purposès. .. Government is to be judged by its action upon men, and by its action upon things; by what it makes of the citizens and what it does with them; its tendency 1 Representative Government, ch. ii.

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