The Hawaiian gazette., 1894-05-29
LEGISLATIVE OR ADVISORY.
A Communication From Judge Hart
well on the Convention.

tional Convention legislative or advis
DRY?
There is a propriety in considering
this question, not in a partizan way
but dispassionately and with sole re-
gard for the interests of the whole
country.
II the sole duty of the Convention
is to "frame a Constitution" and il
this duty does not include nor imply
enactment of a constitution so to be
framed, then the question remains to
answered, by whom shall such consti-
tuition be enacted so as to become the
supreme law of the land?
II the Convention has legislative
power for enacting the proposed con-
stitution, is it desirable or proper that
when so enacted by the Convention,
it shall not become the supreme law
OF the land until submitted to and
ratified ~ popular voteP
If the Convention has full legisla-
tive power in itself, not requiring rat
ifcation by popular vote, are there,
neverthele IS, reasons based on policy
and on the general theory of popular
government, why constitution voted
by the Convention shall, before going
into operation, be submitted to the
voters?
Ii sound policy requires such course
to be taken, 1t Is best TO take tiff
there are no valid objections to it
simply as a matter of policy.
In view of the interest felt in this
subject, it is useful to refer to the pro-
visions of constitutions of the States,
as summarized Ia Stimson's American
Statute Law, and in a compilation
of 1.-THE Methods of Changing the
Constitutions of the States" by Pro-
fessor James A. Thayer, of the Har-
ward Law School.
By the constitutions now in force in
most of the States, amendments when
proposed by either house of the Legis-
lature, and agreed TO by the next Leg
i~iature, must then be ratified by a
majority vote of the electors. In
New jersey and Pennsylvania
amendments cannot be submitted
TO the people Oftener than once
in five years, and in Tennessee in |
six years. In the following States |
if two or more are submitted at |
the same time, the electors must be |
permitted to vote OH each separately: |
New Jersey, Pennsylvania, Chic, In
diana, Wisconsin, Iowa, Minnesota,
Kansas, Nebraska, Maryland, West
Virginia, South Carolina, Georgia,
Louisiana. In Illinois and Colorado,
the Legislature cannot propose amend
ments to more than one article in any
one session.
At present, in most of the States, an
entire revision of the Constitution
may be made by a convention called
for the purpose whenever two-thirds,
or in some cases three fifths, of the
elected members of the Legislature
vote that such convention is neces-
sary, and the electors vote for such
The following States contain pro-
visions for conventions, but no pro-
vision for ratiiying the work of con-
ventiOu: Alabama, lS75i Delaware,
1881; Florida, 1868; Iowa, 1857; Kan
sas, 1859; Michigan, 1850; Minnesota,
1857; Nevada, 1864; North Carolina,
1876; south Carolina, 1868; Tennessee,
1870; Virginia, 1870; Wisconsin, lS4S.
The following States have or had
provisions for amend
ment of their Constitutions by con-
called by vote of a majority
IF electors, but with no provision for !
the work of the convention :
illinois, 1878; Indiana, 1915; Kansas,
1857; Kentucky, 1892, 1893, 1850;
louisiana, 1872; Maryland, 1851; Mis-
souri,, 1917; Nebraska, lS66-67; Ohio,
1882; Tennessee, 1896; Massachusetts,
1850.
In the following instances, cOnstitu-
ions have actually teen ratified by a
majority vote of the electors without
any express provision requiring sub
mission to the people Alabama, 1867,
1875; Delaware, 1881; Florida, 1868;
Geor ia, 1868; Illinois, lS4S, 1870; In
llama, 1851; Iowa, 1857; Kentucky,
1850; Maryland, 1864 Michigan, 1850;
Missouri, 1882; Nebraska, 1875; New
York, 1857; Ohio, 1851; South Caro-
ina, 1865; Tennessee, 1884; Texas,
1868.
These last cited instances show that
4 10 q BtAANSlag BASBNA NSNASS " SN' ]
nit a constitution TO popular vote
wen if unnecessary for the purpose of
giving it validity. In other words,
he absence of necessity of submission
or ratification, in order to legalize
he constitution, is of itself no valid
objection to its submission.
But as it appears to me that there
re valid reasons against sending the
to be framed for Hawaii {
,efore the voters for their approval or |
election, and also that the popular
few at present is decidedly in favor
f submitting it, and against any
'ther course, l propose, at the risk of !
ncountering popular disapproval,
Which by no means enjoy doing, to ,
tate those reasons for the calm rehec-
ion of readers, relying upon them to
Weigh the pros and cons disposition
tely.
First, then, this is not the case of
amendments, TO be
oted or rejected separately. Nor is
the case of a revision of the consii-
ntion. 1t is a new constitution, |
which is proposed to be made and