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PETITION TO GENERAL ASSEMBLY.
To the Honorable the General Assembly :
The Constitutional League respectfully represents:
In the words of the resolution passed by the general assembly, January 27, 1897 :
“There is a wide-sprend feeling among the people of the State that the constitution should be carefully and thoroughly revised, and such changes as may seem to be advisable, in view of the changed condi. tion of affairs since it was adopted, properly and carefully prepared.
Art. I, sec. 1 of our constitution expressly declares, in the words of the Father of his Country, that “the basis of our political system is the right of the people to make and alter their constitutions of government, but that the constitution which at any time exists, till cbanged by an explicit and authentic act of the whole people, is sacredly obligatory upon all."
The time has come for a change by an explicit and authentic act of the whole people, and this can only be done through a constitutional convention, composed of delegates lawfully elected for that purpose, the result of the labors of such convention to be submitted to the electors for approval or rejection. This method is consonant with our system of government, and is the method usually followed in the States of our Union.
If elaborate express provisions had been inserted in the constitution, providing how this right of the people to make and alter their constitutions of government could be carried into effect, no implication found by construction in any other clause of the constitution could be held to deprive the people of this expressly stated right and power to make and alter their constitutions of government.
We subunit that the absence of such provisions does not reuder aıy the less secure and absolute this expressly stated right. Details of this kind are properly omitted from a written constitution, the lawmaking branch of the government being the proper one to carry into effect the principles stated, and the powers and rights granted or reserved, by appropriate legislation or action.
This league, therefore, respectfully petitions your honorable body to call a constitutional convention to frame a new constitution that shall be submitted to the electors for their approval or disapproval.
But it will be claimed it has been decided by the justices of the supreme court that the general assembly has no power to call a constitutional convention, because they have said so in their advisory opinion.
This were to ignore the recognized distinction between an advisory opinion of the judges and an actual decision of a litigated case by the court, and to treat the opinion as an actual decision. This is the common device of those who, not wanting a constitutional convention, shelter themselves behind this false shield. Having such profound deference for the court, why do they not also defer to the court's own declaration and recognition of the distinction pointed -out?
In the case of Allen vs. Danielson, reported in 15 R. I. 480, after a full hearing, with arguments and citation of authorities on both sides, the judges, as a court, reversed their own advisory opinion as members of the court, on the same subject, reported in 13 R. I. 9, giving as one of their reasons for doing so, the fact that the question in 13 R. I. 9 "was a petition on a case stated, and was doubtless submitted without full argument or presentation of authorities. But we have no doubt that we should have decided the case differently if we had bad before us, when we decided it, the same array of authorities which we have before us now.”
In Taylor vs. Place, 4 R. I. 324, the same question came before the supreme court, in an actual case, that the judges had previously given a written opinion upon, to the governor. The court, by Ames, C. J., said: “This is the first time, since the adoption of the constitution, that this question has been brought judicially to the attention of the court. The advice or opinion given by the judges of this court, when requested, to the governor, or to either house of the assembly, under the third section of the tenth article of the constitution, is not a decision of this court; and given as it must be, without the aid which the court derives in adversary cases from able and experienced coun. sel, though it may afford much light from the reasonings or research displayed in it, can have no weight as a precedent."
The supreme court of this State bas, therefore, decided twice that an advisory opinion of its members is not conclusive, and may be reversed when the same matter comes before the court in an actual
Twenty-seven constitutional conventions have been called by the State legislatures, acting without specific authority in the respective existing constitutions to call such a convention. Thirteen of these occurred before the constitution of this State was adopted, in 1842. Of the original thirteen States only one contained a provision for
amendment, yet all have changed their constitutions, and all have done it through constitutional conventions called by the legislature. The common practice of these and of other States has fixed this as a part of the common constitutional law of the land.
The framers of our constitution, in omitting to prescribe how a constitutional convention may be called, knew, or may be supposed to have known, this prevailing custom of calling such conventions by State legislatures, without specific authority so to do in the existing constitutions, and, therefore, they did not deem it necessary to do more than to affirm the right of the people to make and alter their constitutions of government, leaving it to the general assembly to give effect to this expressly reserved right, by appropriate action, whenever the necessity might arise.
This league adopts a construction that gives effect both to Article I, section 1, and to Article XIII of the constitution. It gives effect thereby to the absolute and unlimited right of a majority of the people to make and alter their constitutions of government, as expressly stated in Article I, section 1. It gives effect, also, thereby to Article XIII, stating the limited manner in which one branch of the government, the general assembly, may initiate amendments to the constitution. But for the express limitation upon the power of the general assembly therein contained, the usual majority of the general assembly could propose amendments for the approval of the usual majority of the electors. They are forbidden to do so, except by a majority of all the members elected to each house in two successive general assemblies. A self-imposed limitation is also placed upon the power of the electors, preventing them from acting by the usual majority, and requiring the assent of three-fifths of the electors voting thereon, before any amendment thus proposed shall become a part of the constitution. To extend Article XIII by implication into an abrogation of the express right reserved in Article I, section 1, is to violate the well-known rule of construction requiring effect to be given, if possible, to all the provisions of an instrument.
Instead of following this rule, the advisory opinion of the judges enlarges the scope and operation of Article XIII beyond anything ever contemplated by its framers, makes it exclusive by what it thus finds implied in it, and thereby entirely abrogates and excludes Article I section 1, thus depriving the people of their expressly reserved right to make and alter their constitutions of government. It is not thus that constitutional guarantees are to be construed.
In view of these facts and principles, still insisting that the general assembly has power to call a constitutional convention, the necessity therefor being generally as well as officially admitted, that the advisory opinion denying this right is clearly erroneous, and that in no event does it have force and effect as a decision, we respectfully petition your honorable body to call a constitutional convention; or, if
the power to do so be still doubted, we ask that these important ques. tions be again submitted to the members of the supreme court, with an opportunity such as the judges themselves said in their advisory opinion they would be glad to have, to give them more careful study, and especially with opportunity for the presentation to the judges of all views relating thereto, with full argument and presentation of authorities, in order that the conclusions reached may merit the confidence, approval, and support of the people of the State.
But should the general assembly in its wisdom deem either of these courses ipadvisable, we respectfully petition your honorable body to submit to the electors an amendment to the constitution providing for calling a constitutional convention, under and in accordance with the provisions of Article XIII of the constitution, and providing that the constitution drafted by such convention shall go into effect if approved by a majority of the electors voting thereon, such electors to include those who will become electors under such new constitution, following in these particulars the precedent set upon the submission and adoption of the existing constitution in 1842. And as in duty bound your petitioners will ever pray.
THE CONSTITUTIONAL LEAGUE,
H. J. SPOONER, President.
AMASA M. EATON,
CONSTITUTION-MAKING IN RHODE ISLAND.
Article I, section 1, of the constitution of Rhode Island begins : “In the words of the Father of his Country, we declare that 'the basis of our political systems is the right of the people to make and alter their constitutions of government'* * * * * * * * *.”
The right of the people to make and alter their constitution of government could not be more expressly stated nor more explicitly reserved.
It is an unqualified absolute right-one, indeed, that exists even if not stated, for the same power that made our constitution, i. e. the sovereign people, can unmake it can destroy it - can alter it.
But the makers of our constitution did not rely upon this undoubted sovereign power--the power to make and alter their constitution of government. They put it in the front of the written constitution, as the very right of all rights.
Nothing can deny nor destroy it. It is there, fixed and unalterable, and it only remains to give it force and effect. This might have been done by inserting a clause in the constitution providing the means for carrying it into effect.
We search in vain, however, throughout the rest of the constitution for any directions of this nature. We find it absolutely silent on the subject. There is the inherent right of the people that
. made the constitution to alter it, as well as to make it, expressly stated-but nothing more. The usual rule of construing such statements of rights and express reservations of powers in a written constitution is to give them full force and effect by broad construction and interpretation. Their scope is not to be narrowed by implication nor restriction, but they are to be enlarged and given full effect in securing the freedom of the subject and the preservation of his rights and privileges with all the consequences flowing therefrom. It is in this spirit that all the other statements of rights in our bills of rights are always construed and carried into effect.
In pursuance of this general policy of the law, it has always been held that the legislature has the power to pass laws to carry into effect the powers granted or reserved in the bill of rights of every constitution in the United States. The general assembly of