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the usages and rules require the observance of certain forms and procedures, the constitution itself will also be understood or interpreted as requiring them, because in assuming their existence and being framed with reference to them, it in effect adopts them as part of its provisions as though they had been expressly incorporated therein.* Where, for example, the legislative power is to be exercised by two houses, and by settled and well-understood parliamentary law, these two houses are to hold separate sessions for their deliberations, and the determination of one upon proposed legislation is to be submitted to the other for separate determination, a constitution in providing for two houses, speaks with reference to the settled custom, incorporating within it, so to speak, a rule of constitutional interpretation, so that it would require no prohibitory clause to forbid the two houses from combining in one, and, jointly enacting laws by the vote of a majority of all."

In addition, the customary rules of order and routine, such as every deliberative body must have, are always understood to be under its control, and subject to change at its will. Historic precedents leave to the discretion of the legislative bodies, the choosing of their officers, the determination of their rules of proceedings,' and the election and qualification of their members. These bodies also have always had the recognized power to punish their own members for disorderly conduct and other contempts of their authority.

It would seem only proper that such powers should rest with the body immediately interested, so that its members may proceed with their deliberative functions without being subject to undue delay and interruption and confusion. These rights have been developed over the years through socalled "parliamentary precedents."

Legislatures, furthermore, must of necessity be allowed to proceed in their own way, without interference, in the collection of information necessary for the proper discharge of their functions." When deemed desirable to examine witnesses, the legislatures must have the power and authority to seek them out. So also with regard to the voting of legislatures, otherwise Congress would be able to tailor and reorganize those bodies to its own liking, and to dictate procedure to congressional advantage.

Under the rule of Field v. Clark " procedural requirements in the passage of legislation are deemed to have been properly met when the legislation is certified correct by the presiding officers. Only the legislators themselves may question whether a bill has been duly enacted into law, and their acquiescence in the record of the legislative proceedings is deemed to be an acknowledgment that the legislative requirements to the passage of the act have been performed. Once performed, such action cannot be questioned even by the courts, though there may be patently an error (omission or otherwise) in the legislation itself. This is so even though the constitutional and legislative requirements are capable of judicial investigation and decision. While mindful that the courts have the duty to enforce constitutional provisions relating to the passage of laws, the United States Supreme Court in the Field case, nevertheless held that the courts should not seek to go behind enrolled acts which carry the solemn assurances of both legislative houses, through the certification of their presiding officers, and the executive, that the legislation has passed."

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The Court, in the Field case, classified this problem as a "political question"" and stated that the respect due à coordinate branch of the Government required the judiciary department to accept the assurance as evidenced by the authentication that the legislation was validly enacted into law. In engrossing the bill a clause known as section 30 relating to a rebate of taxes on tobacco, which was shown in the journals of both Houses of Congress to have been regularly passed, was omitted in the engrossed bill. This bill was signed by the presiding officers of Congress and approved by the President. In holding that it would not go in back of the enrolled bill the Court pointed out that the evils which could result from accepting an authenticated act as conclusive evidence that it was passed validly by Congress would be far less than those that would certainly result from a rule making the validity of an enactment depend upon the manner in which the journals, and other materials, are kept by legislative clerks and other subordinate officers.

While no doubt Congress could defeat the internal workings of State legislatures by simply refusing to recognize their actions if they did not comply with congressional mandates, it would be more prudent in the light of court decisions and historical precedents to recognize the established rule that deliberative bodies have the right to regulate their own proceedings and to accept State applications when certified to, as having been validly adopted.

CITATIONS

Hawke v. Smith No. 1, 253 U. §. 221, 230 (1920), chapter 4, supra.

Ames, The Proposed Amendments to the Constitution of the United States During the First Century of its History, pp. 288-290.

Cooley, A Treatise on Constitutional Limitations (8th ed.; 1927).

Ibid., I, p. 267.

Ibid., p. 267.

In Re Speakership, 15 Col. 520 (1891).

7 French v. Senate, 146 Calif. 604 (1905).

The People v. Mahaney, 13 Mich. 481 (1865).

While many State constitutions expressly provide for such authority, such authorization is not necessary. since it is believed to exist in the legislatures whether expressly conferred or not. It is "a necessary and incidental power, to enable the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unit; he may be affected by a contagious disease, or insane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, and abusive language." And, "independently of parliamentary customs and usages our legislative houses have the power to protect themselves by the punishment and expulsion of a member." (Hiss v. Bartlett, 3 Gray (Mass.), 408, 473, 475 (1855); see also French v. Senate, 146 Cal. 604. 80 Pac. 1031.) Cooley, A Treatise on Constitutional Limitations (8th edition; 1927), I, 270-271. Tillinghast and Arthur v. Carr, 4 McCord 152 (8. C. 1829).

19 143 U. 8. 649 (1892); see also Kelley v. Marron, 153 Pac. 262 (1915).

11 Field v. Clark, 143 U. B. 649, 671-672 (1892).

14 See chap. 12 for a discussion of" Political Questions."

59-609 O 80 81

PART III

CONTROL OF CONSTITUTIONAL CONVENTIONS

CHAPTER 6

POWER OF CONGRESS TO BIND A FEDERAL CONSTITUTIONAL CONVENTION AND TO RESTRICT THE SCOPE OF ITS DELIBERATIONS

Probably the most vital question relates to the power of the Congress to bind a constitutional convention, or, to put it another way, the power of the convention to nullify or ignore congressional acts seeking to restrict the scope of its deliberations. Assuming the right of the Congress, for example, to call a convention into being, has it the further right to impose restrictions upon its actions, to dictate to the convention its organization and modes of procedure; in short to subject it to the restraints of legislative law?

Those who deny that Congress has the power to bind a convention rely heavily on the so-called doctrine of "conventional sovereignty." According to this theory, a convention is, in effect, a premier assembly of the people, a representative body charged by the people with the duty of framing the basic law of the land, for which purpose there devolves upon it all the power which the people themselves possess. In short, that for the particular business of amending and revising our Constitution, the convention is possessed of sovereign powers and therefore is supreme to all other Government branches or agencies.1

On the other hand, those who assert the right of the Congress to bind a convention contend that the convention is, in no proper sense of the term, a sovereign. It is, they argue, but an agency employed by the people to institute or revise fundamental law. While there may be a special dignity attaching to a convention by reason of its framing fundamental law, no such dignity or power should attach which would invest it with a primacy over other branches of government having equally responsible functions. A constitutional convention has the general characteristics of a legislature, but with the functions and organization only of a committee. Since its assembling is infrequent and dependent, for the most part upon considerations of expediency, it follows that the Congress, whose function it would be to declare and enforce the expediency, would be the proper body to determine the time and conditions for its assembling and to announce the will of the people in relation to the scope of the business committed to the convention.

Before considering the power and scope of a constitutional convention, it is important to distinguish between a revolutionary convention and a constitutional convention. The revolutionary convention, as its name implies, is part of the apparatus of a revolution. Jameson says it consists of those bodies of men who, in times of politi

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cal crisis, assume, or have cast upon them, provisionally, the function of government. They either supplant or supplement the existing governmental organization:

The principal characteristics of this species are, that they are dehors the law; that they derive their powers, if justifiable, from necessity,-the necessity, in default of the regular authorities, of protection and guidance to the commonwealth,—or, if not justifiable, from revolutionary force and violence; that they are possessed, accordingly, to an indeterminate extent, depending on the circumstances of each case, of governmental powers; finally, that they are not subaltern or ancillary to any other institution whatever, but lords paramount of the entire political domain. [Italics in original.]❜

A constitutional convention, on the other hand as its name implies, is constitutional; not simply having for its object the framing or amending of constitutions, but as being within rather than without the pale of fundamental law. It is, says Jameson, "ancillary and subservient and not hostile and paramount to" the government then existing:

Its principal feature, as contradistinguished from the revolutionary convention, is, that at very step and moment of its existence, it is subaltern,-it is evoked by the side and at the call of a government preexisting and intended to survive it, for the purpose of administering to its special needs. It never supplants the existing organization. It never governs. Though called to look into and recommend improvements in the fundamental laws, it enacts neither them nor the statute law; and it performs no act of administration.' (Italic in original.)

It is clear from the foregoing that conventions, whose definitions thus mutually exclude each other, cannot be the same. A constitutional convention appointed under law and the Constitution, which presumes to overpass the limits imposed upon it by its creators, and seeks to do acts requiring the exercise of revolutionary powers, ceases to be a constitutional convention and becomes in the eye of law an extralegal or revolutionary convention."

It might be well to note at this point that while the constitutional convention of 1787 acted beyond the scope of its authority, the Congress itself ratified and consented to the action of the convention and, in fact, transmitted its proposals to the States for their ratification. At no time did the convention seek to bypass or overrule the Congress; rather it submitted the draft Constitution to the Congress for its consideration and approval.'

Most authorities agree that a constitutional convention, once convened, would be limited by article V. The real area of disagreement is whether a convention would be further limited by the conditions set forth in a congressional act calling it together. Those who do not think a convention would be limited, point out that a convention ought to be independent of Congress-free, even to alter the powers of Congress itself under the Constitution. They offer the argument that it was fear of this contention which caused the Congress, after much pressure had been brought to bear on it for a constitutional convention, to adopt instead, under the first method, the proposal which resulted in the 17th amendment to the Constitution on the popular election of Senators. Many argue that if Jameson's theory of an ancillary and subservient convention was valid, the Congress would have had no need to fear the then proposed constitutional convention in that Congress could have restricted the convention in its work and, among other things, prohibited it from dealing with the question of senatorial elections (art. I, sec. 3). In adopting the first

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alternative method in the amending process, they urge that the Congress, in fact, conceded it could not control the scope of a convention's proceedings.

This whole matter, of course, can be dismissed as being more argumentative than decisive. The Senate took the easy way out and avoided the issue. Whatever its merits, it can hardly be said that the Congress, in proposing the 17th amendment to the States, decided this all-important issue.

While this question, then, has never been directly decided by Congress or by the courts, it seems that the whole scheme, history, and development of our Government, its laws and institutions, require the control of any convention and the most logical place for exercising that control would be in the enabling act convening it, or in some other Federal statutory law. Under article V, Congress calls the convention after the required number of states have submitted petitions. It has the duty to announce the will of the State legislatures in relation to the scope of the convention's business and, under the necessary and proper clause, it may set up the procedures and conditions so that the convention may not only function, but that it may control the convention's actions to make certain that it conforms to the mandates and directives of the Congress, the State legislatures, and ultimately the people. This does not mean that the convention may not exercise its free will on the substantive matters before it; it means simply that its will shall be exercised within the framework set by the congressional act calling it into being.

Dodd has no doubt on this question. He points out that a convention does not supersede the existing government; it "is bound by all restrictions either expressly or impliedly placed upon its actions by the Constitution in force at the time." In the case of our Federal Constitution, a new Constitution as proposed by a convention certainly could not become effective until promulgated and, in accordance with article V (which permits Congress to select the mode of notification), ratified by the legislatures of three-fourths of the States. A convention then is an instrument of government and acts properly only when it stays within the orbit of its powers. Since the Congress is the branch of the Federal Government which has the duty of calling the convention, and since it acts at the requests of the States, and since both, in the final analysis, represent the people, the ultimate source of all power, a Federal constitutional convention, to act validly, would necessarily have to stay within the designated limits of the congressional act which called it into being.

"Necessary and proper" clause

Inherent in all questions concerning constitutional law is one relating to the effect various Articles of the Constitution have on each other. Article V is no exception and must be read and viewed in the light of all the other provisions of the Constitution.

In connection with congressional power, a provision which affects substantially all provisions is the so-called necessary and proper clause. It reads:

[The Congress shall have Power]

* to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.

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