purpose of considering the amendment in a third, a majority of the electors in a fourth and in the ten remaining states a majority of those voting upon the amendment.

From the simple and characteristic method of amending the constitution by an ordinary vote of one legislature and ratification by the people, varyingly complicated methods are found until the climax is reached in the Tennessee constitution, which requires for proposal a vote of two legislatures-in the latter a vote of two-thirds of all the members elected to each house, followed by the favorable vote of a majority of those electors who take part in the election of members of the lower house of the legislature. Furthermore, only once in six years may amendments be submitted to the electorate. "The requirement of proposal by two successive legislatures," says Profssor Dodd, while it defeats many projects which would otherwise go to the people, cannot be said to interpose a serious obstacle in the way of constitutional alteration. Nor in fact, even in the cases of Vermont, Tennessee, New Jersey, Pennsylvania, and Illinois, do the restrictions upon the proposal of amendments interpose insuperable barriers. But when these provisions are combined with the requirement of a popular vote which is ordinarily impossible to obtain except upon questions of the greatest importance, as is done in Tennessee, the amending process becomes almost useless. Even where the restrictions are not sc stringent, but where two legislative actions are required and the legislative proposal of amendments restricted, the amending process is so slow and cumbersome as to prevent a ready adjustment of the fundamental law to changing conditions.

It is the failure of voters to take sufficient interest in amendments to vote either way upon them that often renders impossible their enactment in states requiring a majority of those taking part in the election. Often a majority of those expressing themselves are favorable to the amendment. In order to equalize the results of popular apathy or to make it effect change instead of the preservation of the status quo, various ingenius schemes have been devised by legislatures. Thus in Alabama in 1898 the official ballot had printed on it the words "For Birmingham amendment," and the voter was required to cross Op. cit., 136-7.

310. Amendment

by Popular Initiative.

out the words if he disapproved the amendment. Says Professor Dodd,

There is not, so far as can be seen, any objection to placing the burden upon those opposed to an amendment rather than upon those who favor it; and certainly there can be no objection to the voter's being required to express himself either for or against a measure which is submitted to him for approval.s

The second method of revising a constitution is by amendment proposed by popular initiative. The initiative for constitutional amendments does not differ in principle from the initiative for statutes, but in half of the twelve states permitting it, the petitions require the signatures of a larger proportion of the electorate. The number of signers required varies from eight per cent. of the legal voters of the state in Arkansas, California, Colorado, Missouri and Oregon1 to twenty-five per cent. of the legal voters in each of not less than one-half of the counties of the state in North Dakota. In Nevada not more than ten per cent. and in Michigan not less than ten per cent. are required. In Ohio, also, the requirement is ten per cent, with the additional stipulation that petitions must be filed from each of one-half of the counties of the state bearing signatures of not less than five per cent. of the electors of each county. Fif teen per cent. of the legal voters must sign the petition in Arizona and Oklahoma; and the same proportion in Nebraska, where five per cent. of the voters in each of two-fifths of the counties must be included.

In Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nevada, Ohio and Oregon amendments proposed by popular initiative are adopted by vote of a favorable majority of the votes cast for and against them. The same is true in Nebraska, but the affirmative vote must equal thirty-five per cent. of the total vote cast in the election. No amendment substantially the same as one defeated can be submitted within three

"Acts of Ala., 1896-7, p. 1202:-upheld, Hardware Co. v. Birmingham, 123 Ala., 336 (1898). Concerning party endorsement of amendments, a more important method of getting votes for them, see, supra, pp. 80, 81n.

Dodd, op. cit., 192.

Compare the following with the table showing the percentages required for statutes, supra, p. 189n. For constitution citations, see p. 346n.

"The same as for laws in each case. In Nev., also, the percentage is the same.

2In Nev. and O. the indirect initiative probably includes amendments, though in terms it applies to laws only.

years. In Oklahoma the requirement is a majority of those taking part in the election, ordinarily a general election, but the governor and legislature may call a special election for the purpose. In North Dakota a majority of all the legal votes cast at a general election is necessary, upon obtaining which the proposed amendment must be referred to the next legislature, which may adopt it by vote of a majority of all the members elected to each house. If the legislature fails so to adopt it, the proposed amendment must again be submitted to the people at the next general election and if voted for by a majority of those taking part therein, it becomes part of the constitution.

In considering the proposal of constitutional amendments by popular initiative the fact must not be forgotten that it is an additional and not the only method of amendment. All of the states having the initiative have also some form of legisla tive proposal. The initiative simply gives the people a method of amending their fundamental law directly instead of through their representatives. The theoretical objections to direct legislation based on the assumption that distinction between constitutional and statute law ought to be preserved inviolate, do not, of course, apply to the initiative for amendments. The practical objections, chiefly the possible technical imperfection of proposals and their two great frequency, as well as the practical advantages of probably increased constitutional conformance to the progress of the state and of the popular education resulting from increased popular control and responsibility, are essentially the same in each case.

311.

The Con

Convention.

The third method of revising the constitutions is by the constitutional convention, elected by the people for the particular stitutional purpose. Conventions may submit separate amendments to be voted upon by the people one by one or altogether. More characteristically, however, conventions meet to frame new instruments that are designed entirely to replace existing constitutions, though in general these are to a considerable extent copies of the old constitutions.*

Even within recent times conventions have frequently promulgated the results of their labors without submitting their

There seems to be an increasing tendency to initiate measures as amendments rather than statutes.

e. g., N. Y., 1915.

revision to a vote of the electorate. The usual practice is, however, for the people to vote (1) upon the question of calling the convention; (2) for delegates to the convention, and (3) upon the adoption or rejection of the work of the convention.

Two states, indeed, allow the legislature, of its own motion, to call a convention. But the people must be consulted everywhere else. Several constitutions provide in advance for a periodic submission to the voters of the question of holding a convention. Thus in New York, according to the constitution of 1894,9

at the general election to be held in the year one thousand nine hundred and sixteen, and every twentieth year thereafter, and also at such times as the legislature may by law provide, the question, "Shall there be a convention to revise the constitution and amend the same?" shall be decided by the electors of the state; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every senate district of the state, as then organized, shall elect three delegates at the next ensuing general election at which members of the assembly shall be chosen, and the electors of the state voting at the same election shall elect fifteen delgates-at-large. The delegates so elected shall convene at the capitol on the first Tuesday of April next ensuing after their election and shall continue their session until the business of such convention shall have been completed.1

In addition to the periodic submission, the states requiring it, together with most of the others providing for conventions,2 permit the legislature to submit to the electorate at any time3 the question whether one shall be called. One of them, New

"Miss. (1890); S. C. (1895); Del. (1897); La. (1898); Va. (1902). The Ky. convention of 1891, after having its work ratified by the people reconvened and adopted changes that were not submitted to the people. Except in the cases of Del. and Ky. the new constitutions disfranchised a large proportion of the negro voters and consequently the conventions feared to submit them to their votes. Instances have been known of submission to the electorate as defined by the instrument to be voted upon, as in Tenn. in 1835.

In accordance with an existing constitutional provision requiring it or authorizing the legislature to refer the matter to the people, or, in those states allowing the initiative, upon a popular petition.

Me., IV, Pt. III, 15; Ga., XIII, sec. I, 2.
STwo-thirds vote required.

XIV, 2.

10. and Md. (XVI, 2, 3; XIV, 2) likewise have twenty-year intervals. Mich. (XVII, 4) provides for sixteen: Ia. (X, 3) for ten, and N. H. (II, 28, 99) for seven-year intervals. Okla. (XXIV, 2) ordains that the question must be submitted at least once every twenty years and that a convention shall not be called except after a referendum to the electorate.

2In all, 34 states.

For taking the vote the next general election is often specified.

Mexico, requires a vote of three-fourths of the members of each house, which, after the constitution has been in force twentyfive years shall be changed to two-thirds. Two-thirds of each house or of the members elected to each house is the vote required to submit the question in seventeen states and threefifths in one, Nebraska. The others require simply a majority or a majority of all the members elected to each house. Kentucky, however, requires such a vote by two consecutive legislatures.

Provisions concerning notice of election, the time for holding the election, et cetera, are frequently found in the constitutions. A majority of those voting upon the question is generally sufficient to authorize the convention, but some states require a majority of those voting at the election.

Fourteen constitutions specify the votes necessary for the popular adoption of the convention's proposals-two-thirds of those voting on the subject in New Hampshire, a majority of those voting at the election in four states and a majority of those voting on the question in the others.1 Five states2 provide that the constitution adopted by the convention must be ratified, but specify no required majority.

Various provisions governing the qualifications, election and apportionment of delegates to the convention and the action of the convention when assembled are found in the constitutions. Alabama contains the interesting and prudent stipulation that nothing in the present constitution shall be construed as restricting the jurisdiction and power of the convention to estab

Const. of 1910 (XIX, 2).

"Cal., Colo.. Del., Fla., Ida., Ill., Kan., Minn., Mont., Nev., N. C., O., S. C., S. D., Utah, Wash., Wyo. Del. does not require the governor's approval. $258.

"Cal., Colo., Del.. Fla., Ia., Mo., Mont., N. M., N. Y., O., Tenn., Va., W. Va., Wis. Ky., ib., adding that the affirmative votes must equal one-fourth those cast at preceding general election. Several constitutions state the provision indefinitely.-Majority of votes cast (N. C., XIII, 1); "Majority of qualified voters of state present and voting at meetings" (N. H., II, 98); "Approved by the people" (Ariz., XXI, 2; Okla., XXIV, 2).

Ala., Ida., Ill., Kan., Md., Mich., Minn., Neb., Nev., S. C., S. D., Utah., Wash., Wyo.

"Colo., Ill., Mont., Utah.

1Ariz., Cal., Md., Mich., Mo., Neb., N. Y.. O.. Okla.

21da., N. M., Wash., W. Va., Wyo.

3XVIII, 286.