Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1871-06-02
From the Raleigh Sc 1tiDel.
COysTITUTIONALITY OF THE CONVEN-
TIOS ACT.
OPINION OF HON. B. F. MOORE.


Robert p. Vdring, Esq:
1 have received yours requesting my
| opinion upon the question, whether the
people con have the rightful power to as
sembie IL convention anl alter their coU-
| stitution, unless such convention shall be
| called (accordiug to the provisions In anti
Gle XIII Of the state cOnsuiutlJn) by the
general ass emily, aud then "by the con
currence Ct two-thlrd5 of all the members
| of each house =?
BY opinion upon the same point has
| been II quest, d by many others of lay fell
| IlOw-citiZens.
Under such circumstances, and in view
Of mater SO deeply involving the great
political rights of the people, feel that it
would be default Of duty should l with
| hold any inform ton may possess upon
subject Sd Interesting to the public.
| The conclusions which [ have formed
| upon tins suffice result from an undevia-
ting recurrence to the fundame ntai
8 principles" OF our government, which
place ali power IN the people OF the State,
subject only to those restraints put upon
that power by the constitution and laws Of
the United States.
Under the present form Of our State
go 9elnmert hold, with the ''Declargtion
of Rights" g that all political power Is
vested in and derived from. the people ,"
that " all govern Mt, of right. originates
from the people, and is founded upon their
viii only ;" that " the people of the State
have the inherent, sole, and exclusive right
of r, gulatlng the internal government and
police thereof, and OF altering and abol-
ishing their constitution and form Of gov
ernment ;" aud that ' every such right
should be exercised in pursuance of law,
and consis emily with the constitution Of
the United States"
Acknowledging the existence Of these
fundame ntal principles, i'll the fullest latl-
tude consistent with their reasonable cou-
sruction, I shall proceed to apply them
in solving the question under considera-
toD.
All laws, made for the government OF
the people Of the State, properly divj-
ded into two great classes: l. Those
which are made by the people in their Fri
mary cai iacity, while acting fer themselves
through unrt strained agents, aGd repre-
euting the people 4s fully as the people
could represent themselves were they per
sonally present AMI actiGg. Such of this
class Of laws as 8rJ not SubJt cEed to repeal
or modification by the general assembly
constitute what is termed the constitution
or fixed laws, that is, laws fixed until the
are annulled or mod fed by power as
supreme as the power which made them,
namely, the people themselves, acting in
/
which are made by the people, through
their repre- entatives acting for them under,
aud in suborIinatiOn to, the constitution
or fixed laws these Constitute WEGt are
usually termed laacS. They ale repealabie
by the same authority which made them ;
and it is out Ct the power OF that author
ity to remove such laws beyond the reach
of that authority, because the same power
which makes law Can unnake 1t.
THUC constitution or fixed law, Is o letter
: both of authority ana command from the
people to their agents-the members oi
the general assembly. By this letter they
are empowered and instructed In their
action. This letter Is e7er-speaklng and
+ addressing itself to the agents appointed
by and under it's provisions and, under
the theory Of orr state government, Is a
all times proclaimiug the Will OF tbs
people-nos the people only who made 1
= wears or ages hygoue, but the ex stirG
d present people. It is this fnndamentA
~ ~ prip ciple which il spires the fixed law will
i lie-preSent Ii lie. II am asked VIVA
Sc reason. have for this assertion, L ans"e
in the language of section 3, IF the Dec
= laration of r gnts, ''that the people of tn
State have the inherent, sole, and e1
cirsive right 10 alter and Pbolish thei
coos.itullon and form of government -
Aud | say, that though this consttulO
was made by generatlon Ct people "h
4
se, Grafton has passed away AMI ano h9r sue
'e, ceedel, still the cons ltutlOn has bee
neither ab0Ii shed nor altered therefor
. the pre- umption exists, cOnciuslVely, tn
it is as much the viii of The pre- eut ger
tc GRAFTON of he people as 1t was of that gel
Grafton of people who made 1T E4Vel
EE. RATIONAL MUD assents to the correctness
1T: ,fs thit' this conc C usion: Bes how can thi,
true. if d majority of the present peop
f cAnsot assemble and alter constitute
, which majority of the people Of Pa
,. generation as embed aud made =! is
rs the establishment Of constitution F
mr. htical power, aud Is not all such p1"
vested IS fully in the kr-sent g+nerat1
On as it was in :he past Is not the VIII
:, the people as sacred no" as IL was y
- ago? a.. :,; ,,,,
'a arv sition is theoretically trUe, AMI cannot
pie questioned IN the abstract, but that th'
his people, who, in generation DyGone,
ST. serted these golden truths as the llghts
:, maa and gifts Of God in order to prot
. the fixed Law, which they then Eaade,
these very rights and gifts from the II
hands of all future generations ci the pt
pie inserted il that very fixed law pl
vision, whereby were cut oil and prom
OA ted all means for asca1talulpg "het'
zmz "the people of the State would eXefc
their sole, exclusive AID inherent 1lgnI
WV altering their cOnsuSuttou' HnH !
ioy the benefit of these sacre1 rl9t
,rv r6ey made it (says this ansWer} part
me- the fixed law, that ''no Convention OF
/ in people shall be called by the General !.
sembly unless by the concurrence OF t
thirds of all the Members OF each Ho
Una of the General Assembly. Iherei
cci- 1ooncl,des thi. answer it is clear that
roice of The people is forever hush d,
As. they are fotbidden to exercise their inh
5th ent right unless eighty members OF
thirty -four members of the other he
has consisting of so persons, ST al allow tne'
for the people-the privilege Of altering
law fixed by bygone age OF men,
.wba Il is equally manifest. and is an und
va Convention should ever become as N
pleased with its fixed laws, as was Ly'
u ana ana gus with the institutions framed by
''on' for Sparta, such convention YOU'D Ia q
rrobibit oil chances in their sci