The efficacy of attempts to define

The efficacy of attempts to define and control the constituent authority with rules of positive law has sometimes been tested in connection with the actions of constitutional conventions in the American states. The experience in Pennsylvania in 1872 illustrates the deep ambiguity at the heart of this question. The Constitution of 1838 provided for amendments to be passed by two consecutive legislatures and approved by popular vote. No provision was made for a constitutional convention. Nevertheless, in June 1871, the legislature submitted a question on the calling of a constitutional convention to a referendum. That proposition was approved by the voters and further legislation the next year provided the machinery for electing and convening the convention. That body met and drafted a new constitution. It then passed an ordinance for the organization of an election at which the draft constitution would be put to a vote. The procedures specified appeared, in some respects, to be contrary to the *729 convention’s enabling legislation (not to mention the existing constitution) in several ways. Two suits were brought seeking to enjoin the referendum which state officials had been prepared to hold on the convention’s terms. One of these suits was dismissed in the trial court in a remarkable opinion by Judge Edwin H. Stowe. Citing the state constitution’s Declaration of Rights that recognized the people’s “inalienable and indefeasible right to alter, reform or abolish their government in such manner as they think proper,” he affirmed that “such power exists above and before the constitution.” The right to remake the constitution exists “in all cases and at all times, whether there is a way provided in their constitution or not.” This right, once revolutionary, had now been “restrained and modified.” It could be exercised by “the introduction of constitutional and legal revolution by the consent of the constituted authorities of the state.” The convention, “quasi-revolutionary in its character, [has] absolute power, so far as necessary to carry out the purpose for which [it was] called into existence . . . [W]hen once called into operation by proper authority, it cannot be subverted nor restrained by the legislature.”71

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The efficacy of attempts to define and control the constituent authority with rules of positive law has sometimes been. Tested in connection with the actions of constitutional conventions in the American states. The experience in Pennsylvania. In 1872 illustrates the deep ambiguity at the heart of this question.The Constitution of 1838 provided for amendments to be passed by two consecutive legislatures and approved by popular, vote. No provision was made for a constitutional convention. Nevertheless in June, 1871 the legislature, submitted a question. On the calling of a constitutional convention to a referendum.That proposition was approved by the voters and further legislation the next year provided the machinery for electing and. Convening the Convention. That body met and drafted a new constitution. It then passed an ordinance for the organization. Of an election at which the draft constitution would be put to a vote. The procedures specified appeared in some respects,,To be contrary to the ended 729 Convention ’ s enabling legislation (not to mention the existing constitution) in several EOS ways. Two suits were brought seeking to enjoin the referendum which state officials had been prepared to hold on the Convention friendly s EOS Terms. One of these suits was dismissed in the trial court in a remarkable opinion by Judge Edwin H. Stowe.Citing the state constitution 's Declaration of Rights that recognized the people' s inalienable and indefeasible right. " To alter reform or, abolish their government in such manner as they think proper, "he affirmed that such power exists above." And before the constitution. "The right to remake the constitution exists" in all cases and at, all timesWhether there is a way provided in their constitution or not in can ” This right, once revolutionary, had now been “ restrained EOS And modified. ” It could be exercised by “ the introduction of constitutional and legal revolution by the consent of the constituted EOS Authorities of the state. "The convention," quasi-revolutionary in its character, [], has absolute powerSo far as necessary to carry out the purpose for which [it was] called into existence me. Your [W] hen once called into operation EOS By proper authority, it cannot be subverted nor restrained by the legislature in can ” 71

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