What Is a Constitutional Convention and Its Purpose - Coursework Example

Order 155777 Topic: ‘Constitutional conventions should be put on a legal footing. “However, there is no clear agreement as to what amounts to a convention.’ Discuss Introduction This paper seeks to analyze and discuss preposition that “Constitutional conventions should be put on a legal footing. However, there is no clear agreement as to what amounts to a convention.” This paper examines the nature and purpose of a constitutional convention and eventually comes out with the conclusion where there is truth to the confusion as the real meaning and significance of a convention. 2.1 What is a constitutional convention? What is its purpose? A constitutional convention is one designated by the people in their sovereign to capacity to make, alter, change of modify the constitution of a state (Hoar, R. 1917). It could be described also as “an informal and uncodified procedural agreement that is followed by the institutions of a state” which (Wikipedia, 2007) Hoar (1917) in discussing a constitutional convention as a means of changing or amending written constitutions, told of its being an American origin. He noted the fact written constitutions themselves originated in the US. The idea of a constitution convention is given importance in the light of it purpose, that is making or changing the constitution. Characterizing that the idea of a constitution is “to signify something superior to legislative enactments” or “a body of fundamental principles of government which are beyond the control of the Legislature.” Hoar (1917) described a constitution as “a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”(Mass. Const., Preamble.) He explained it is “the Anglo-Saxon theory that government is in some way based upon a contract between the people and the State” (Hoar, R. 1917). In applying the principle of constitutionalism of the US, Hoar (1917) noted that however, Americans both the terms of the “unwritten British constitution” and by the “charters or other written instruments whereby Great Britain directed their government” which he described to be “suspended the moment the colonies declared their independence,” as “the colonies reverted to a state of nature” (Ch. II §8 pp. 26-28) (Hoar, R. 1917, Chap 1) What will confer the necessary legal footing to a constitutional convention? It is an accepted principle in democracy that power belongs to the people. When we say people we are referring to those who can actually vote on issues or elect their leaders. This right of the people to “have the right to change their form of government at will, using whatever method suits them (Ch. II §2, p. 12)” In describing the nature of the right of the people, Hoar (1917) said “This is a fundamental right, which constitutions are powerless to deny, restrict, or limit as to method (Ch. II §3). The people may exercise this right in any one of three ways: (1) by some authorized procedure; (2) by a lawful act representing the whole people; or (3) by acquiescing in a spontaneous act of a part of the people (Ch. II §3, 7 pp. 15, 24)” In explaining an authorized procedure, which is “one which has the sanction of Congress in the case of a territory, or of the constitution in the case of a State”(Ch. II §3), Hoar (1917) meant that the law making body had laid down rule on how to do it including the number of delegates which should constitute the same or may even take the form of constituting the Congress as constituent assembly and thereby acting and working as a constitutional body to make amendment or revision to the Constitution. The possibility of doing extra constitutionally is also possible as because its validity is “from the inherent power of the people” (Ch. II §3, p. 15,). As to how this could be done, all the people in the sovereign capacity may organize themselves in a meeting or through a people revolution and proclaimed them selves adopting a revolutionary constitution to replace of supplant for example one that has become oppressive to the people. This could happen in a sudden over throw by all the people in an uprising either by the people or with the help for example of military. It is called extra constitutional because they need not follow what was originally written procedure in the present constitution if there is any. Another method is through a spontaneous movement which “becomes effective only by subsequent popular acquiescence, produced usually by force.”(Ch. II §7, pp. 22-24). This could happen for example if a military junta was employed by a renegade group in the military and suddenly put them selves in power because of their lost trust of those in power. This group of military people will overthrow the government through the use of arms and other means and eventually the people will render obedience because they have believed to acknowledge the new government and the corresponding Constitution which the rebels might have declared to be part of the government. The inherent power of the people to change the form of their government cannot be restricted and can be done in three ways as explained. Hoar (1917) added “With respect to the constitutionality of any given method of amendment, it may be either (1) authorized; (2) permitted by {222} not being prohibited; (3) prohibited; or (4) beyond the constitutions control.”(Ch. II §8, pp 25 to 26) One could notice at this point that the method as far as constitutionality of any given method is concerned one could be within and without the constitution control. In fact Hoar (1917) said , “Anything beyond the constitutions control enjoys exactly the same status, regardless of whether the constitution attempts to authorize, or to prohibit it, or merely remains silent on the subject.”(Ch. II §8, p. 26). He explained further, “The word "constitutional," in the phrase "constitutional convention," does not refer to the constitutionality of the convention.” (Ch. III §1, p.30) Furthermore Hoar (1917) said, “Any dispute as to whether or not a convention is a "revolution" is merely a dispute over definitions, for the word "revolutionary" may equally well mean "unlawful and violent" or merely "unauthorized by the constitution." It is used in the latter sense in this book.” (Ch. III §2, pp. 31-33) There is therefore no limit as to how the constitutional changes could be made thorough a constitutional convention. He thus emphasized, “Each of the three classes of changes in constitutions — i. e. authorized, popular, and spontaneous — may take the form of a convention; thus giving us three sorts of conventions.” (Ch. III §3, p. 34) This may be the reason as the apparent confusion as to the real legal footing a constitutional convention under each classes of changes. It could be that in the minds of a person has traditionally associated government with ‘legality’ or ‘peacefulness’ of orders only those are authorized would appear to then as one with legal footing. But since it is the people who will confer the power to any group to organize a constitutional convention that could be done through acquiescence it is them also who will give the authority or legal footing on the matter. Or since by their direct action through popular means they have constituted themselves or have appointed some of their leaders to do it, then the legal footing of any of the conventions organized for constitutional change could not be questioned. This will be explained more in the next section. 2.2 What then is the legal footing of a constitutional convention? Does it really have any? Basing from the definition that is based on sovereign act of the people, its legal standing must be presumed on the premised that in a democracy all authority emanates from the people. It would appear therefore that there is no basis to the statement that a constitutional convention should be put in a legal footing since the constitutional convention has legal footing from the start. 2.3 Is there not a clear agreement as to what amounts to a convention? Why? The lack of clear agreement may be caused on the definitions of the terms from much point of views. Since conventions are of different types, hence the lack of clarity. But as proven in this paper, the correctness of the convention is the accomplishment of the purpose of the constitutional convention. As discussed earlier, the three classes of the changes in constitution which are all valid may be causing the confusion as to what amounts to a convention. One could be authorized, popular, and spontaneous (Ch. III §3, p. 34,), yet each are valid as long as the people are the ones behind all this since it must go back to the principle that all powers in a democracy emanates from the people. Hoar (1917) agreed that “the convention really derives its authority from a higher source; and that the provisions in the constitution, like those in a convention act passed by the legislature, merely serve to provide the means for the exercise of a superior right, inherent in the people.”(Ch. IV §5-6, pp 50-52) Since the right of the people is inherent from which all authority in government emanates it follows spontaneous conventions could be considered valid conventions. Hence to say that convention should be put on legal footing would too constrain an interpretation to put the definition of a valid convention. Thus it is not surprising to hear that that there is no clear agreement to amount to a convention, since a convention can be classified as belonging to “each of the three classes of changes in constitutions — i. e. authorized, popular, and spontaneous — may take the form of a convention; thus giving us three sorts of conventions.”(Ch. III §3, p. 34) May the people call directly call for a constitutional convention? The answer of course is in the affirmative Hoar (1917) said, “Conventions called by the people, speaking through their electorate at a regular election, are of unquestionable validity; and are extra- or supra-constitutional, rather than constitutional”( Ch. IV §7, pp. 48, 54-55,) He also cited that the “people enact the convention act, where they invoke the initiative”(Ch. V §1, p. 58) The same could be done where “a convention act be referred to a popular vote, the voters call the convention”( Ch. V §2, pp. 59-60) It could be asked in the latter whether under the latter it would now the legislature that is exercising the legislative power but Hoar (1917) said, “The passing of a convention act is not within the legislative powers of the legislature”(Ch. V §2, 6, pp. 61, 66-68) Thus Hoar (1917) concluded that “Thus it is possible that all provisions — whether statutory or in constitutions — for the holding of conventions are in reality given their entire validity by popular action thereunder.”(Ch. V §11, p. 74) Arguing from the practical side, on why the need of the legislature to do the act if it is all the people who has the power to accomplish all this? Hoar (1917) said, “Nevertheless, the people have not the machinery to hold a convention, unless they are assisted either by the legislature or the constitution. (Ch. V §12-13, pp. 75-77). Moreover he added that it is “preferable that this machinery be provided in detail by the constitution, as the people then will not be subject to the whim of the legislature, but may have a convention whenever they desire to exercise their unquestionable right to have one.”(Ch. V §13, pp 76-77) A question could be asked as this: “Would the consequent use of the legislature of the by the as machinery amount to act done by legislature and therefore the same as having the people not really exercising their inherent power of making or changing the constitution? Hoar (1917) said, “The only action which could be characterized as distinctly that of the legislature alone, would be for the legislature both to call the convention and elect the delegates, without any popular participation at any stage of the proceedings.”(Ch. V §13, pp 76-77) It is therefore clear that whether the people use the legislature to attain its purpose of changing the constitution is immaterial. In fact Hoar (1917) even argued that the convention is “really a fourth branch of the government, and hence should enjoy the same independence from each of the three regular branches as they do from each other” (Ch. VII §1, pp. 89-91) Conclusion Legal footing connotes possession of legal standing to as to produce a clearly valid and legal act. To say the constitutional convention should be put in legal footing implies that constitutional conventions which may have not legal standing and such fact may contradict what theory may presently say. This need not be said since constitutional convention if they constitute sufficient number people to effect a change in the constitution must be deemed valid and legal. Constitutional conventions have their inherent legal footing by the inherent nature of the right of the people to change the form of their government. This should now have defined as to what amount to a convention that is one that can really make the act of the people of changing their form government valid. It could thus be stated that the lack of clear agreement as what amount to a convention lies in the failure to recognize the power behind the purpose of a constitutional convention. References: Hoar (1917) Constitutional Conventions Their Nature, Powers, and Limitations, Chapter I, the Origin of Convention {www document} URL http://www.constitution.org/rsh/concon01.htm#01-02, Accessed March 5, 2007 Hoar, R. (1917) Constitutional Conventions Their Nature, Powers, and Limitations, Chapter XVIII Conclusions, {www document} URL http://www.constitution.org/rsh/concon18.htm, Accessed March 5, 2007 Hoar, R. (1917) Constitutional Conventions Their Nature, Powers, and Limitations, Ch. II § 2, 3, 7, 8, Fundamental Principles, {www document} URL Hoar, R. (1917) Constitutional Conventions Their Nature, Powers, and Limitations, Ch. III §1, 2 and 3, Analysis of Questions, {www document} URL Hoar, R. (1917) Constitutional Conventions Their Nature, Powers, and Limitations, Ch. IV §5-6, 7, Popular Conventions Are Legal, {www document} URL Hoar, R. (1917) Constitutional Conventions Their Nature, Powers, and Limitations, Ch. V §1, 2, 6 and 11-13), who Calls the Convention, {www document} URL Hoar, R. (1917) Constitutional Conventions Their Nature, Powers, and Limitations. Ch. VII §1, Executive Intervention, {www document} URL Wikipedia, 2007, Constitutional Convention {www document} URL http://en.wikipedia.org/wiki/Constitutional_convention_%28political_custom%2, Accessed March 5, 2007 Read More