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SOURCE AND EXTENT OF LEGISLATIVE POWER.
The extent of legislative power depends upon its source. That the Legislature derives its power from the people, all admit; but there is not entire uniformity in the modes of thought as to the manner in which the Legislature comes into possession of the power. Some lawyers and even some jurists are in the habit of looking upon the State Constitution as the medium through which the power is transmitted from the people to the legislative bodies, and which is, therefore, to determine its extent. A correct solution of this question must depend upon three others: the relation between the people of a State and a Constitutional Convention;–the relation between such Convention and the Legislature, and the relation between the Legislature and the people. Let us examine them in their order. I. The relation between the people and the Convention. A Constitutional Convention having been called, under an established form of government, nothing is more absurd than the doctrine that as soon as it has assembled, the government is resolved into its original elements, and the members of the Convention become clothed with complete political power for all purposes. It is somewhat surprising that a doctrine so dangerous and so revolutionary should have obtained any foothold among an intelligent and patriotic people. The Convention is a mere agency of the established government. It is chosen and assembled for a definite purpose, and clothed with definite powers. It is not a legislative body. It has no legislative powers beyond what are absolutely necessary 'for the accomplishment of its special work, which is, either a general revision of the Constitution, or the considering and maturing of certain special changes in the fundamental law. The relation is that of principal and agent. The Convention is the special political agent of the people. After its work of general revision or of maturing special amendments has been done, it should be submitted to the principal, the people, for approval; and such is now the universal practice in this country. The mere statement of this relation is sufficient to show that it is not competent for the Constitutional Convention to confer any political rights upon the people. To attempt to do that would be for the agent to undertake to clothe his principal with authority. “A Constitution” says Dwarris, “grants no right to the people, but is the creature of their power, the instrument of their convenience.”—(Dwarris on Statutes, p. 347.) But while an agent cannot confer power upon his principal, he can provide for establishing more firmly the power already possessed, and guard against its overthrow. And so, while a Convention cannot clothe the people with political rights, it can provide safeguards for the exercise of those they already have. As an illustration, take the question of the suffrage. The people do not acquire their right of suffrage from the Constitution. That this is the case in reference to the Federal Constitution, was expressly decided by the Supreme Court of the United States in Minor v. Happersett. It is equally true of a State Constitution. If any one is disposed for a moment to think otherwise, let him ask himself whether, in voting for delegates to a Constitutional Convention, he intends to clothe those delegates with the power of saying in their discretion, whether he shall or shall not have the right to vote again. Does he intend to surrender his right of suffrage into the hands of the Convention? Before delegates were sent to the Convention he had the right to the suffrage—that right he retains during its deliberations, and after it adjourns the right is exer
cised in approving or disapproving the result. And after the Convention adjourns, though he may find his right to vote recognized and guarantied in the new Constitution, his title to the suffrage is no better than it was before. A man may be protected by law in the possession of his farm, but that has nothing to do with the title to the farm. And this brings us to the proper construction which should be placed upon the suffrage clauses in a State Constitution. Though a Convention cannot confer any political rights upon the people, it can provide safeguards against their violation. If it cannot grant rights, it can guaranty them. And this is what it does do when it specifies in the Constitution certain classes of persons “who shall be entitled to vote,” or “who shall be qualified electors.” This, properly construed, is a guaranty of the right of suffrage in the classes mentioned. It is equivalent to saying that the Legislature must not interfere with their right to vote. Such a clause is not to be construed as a grant of the right of suffrage, because the Convention is not competent to grant such a right; nor should it be construed as a regulation, because the regulation of the suffrage is an ordinary act of legislation which is peculiarly within the province of a legislative assembly. It is not to be presumed that the Convention has undertaken an ordinary act of legislation, if any other construction can be placed upon the Constitution. The construction which makes such a clause a guaranty, is therefore, the only one which is consistent with the relation between the people and the Convention and with the proper exercise of legislative power. And what is true of the suffrage, is true of every other political right specified in the Constitution. It matters not though the language may be that of a grant, or of a regulation; since the language is to be construed consistently with the power which the Convention possesses, and not with a power which it does not possess. The conclusion therefore is, that in its relation to the people, a Constitution is a guaranty of their natural and political rights. In its relation to the people it is this and nothing more. It is not the source of the rights of the people.
II. The relation between the Convention and the Legislature. The Constitution is not a grant of legislative power. No such grant is necessary. The Legislature was antecedent to the Constitutional Convention and was invested with full power of legislation before the Convention assembled. The Legislature did not derive its power from any Convention. Its power comes from the people; not indirectly through a Constitution, but directly. The power to legislate is implied in the word “Legislature,” ea: vi termini. The people, having the right to govern themselves, elect members of a legislative assembly for the very purpose of exercising through them the right of self-government. All the rightful governing power that the people have, the Legislature has. But the people have no right to oppress each other, or to deprive each other of any civil or political rights, and it is not to be presumed that they intended to authorize the Legislature to do what they had no right to do themselves. Legislators, however, do not always bear in mind these maxims. They are apt to forget that they are the servants of the people and to imagine themselves their masters. Hence the necessity of placing limits upon legislative power; and this is one of the functions of the Constitutional Convention. The people do not need a Convention to confer rights upon themselves or power upon a legislative assembly which they have chosen for the very purpose of exercising legislative power for the preservation of their rights. But they do need checks and restraints upon legislative authority, and they call a Convention for the purpose of establishing such checks and restraints as may be necessary. When the Constitution says, as in Article IV, Sec. I, of the Constitution of Illinois, “The legislative power shall be vested in a general assembly,” etc., the meaning is, not that it shall be now vested, de novo, but that it shall remain yested. It is a mere recognition of power already possessed. Sometimes there is in a Constitution what appears to be a grant of power upon some special subject, as, for instance, the provision in Sec. 30 of Article V of the Constitution of 1870, concerning the establishing and opening of roads and cartways, connected with a public road, for private and public use. All such provisions are to be construed as qualifications of some more general provision which is in the form of a limitation. It will be found, upon examination that there is no difficulty in thus construing the section referred to. And it matters not though the language of the Constitution may be that of a grant of power. For here, again, the principle will be applied, that the Convention will be deemed to have acted within the scope of its legitimate powers, and not to have undertaken to do that which it was not competent to do. It is not competent for a Convention, which is only a special agent of the people, to confer power upon the Legislature, which is the general agent of the same principal. There is to be found, also, in the Constitution, various directions for the exercise of legislative power upon certain subjects. These may generally be construed in aceordance with the legitimate function of a Convention as a restraining and guarantying body, and are therefore generally obligatory, in a moral sense, upon the Legislature. In cases where they cannot fairly be thus construed, it may well be doubted how far a Convention has power to dictate to future assemblies the character of their legislation. If the Convention cannot legislate itself, except for a special purpose, how can it say what laws shall be enacted thereafter, otherwise than by way of prohibiting the passage of certain laws, or providing for such as shall make effectual the guaranties of the Constitution? By a directory provision contained in the Constitution of 1870, Art. VII Sec. 7, it is provided that “The General Assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes.” This provision is at the same time a recognition of the power of the Legislature to regulate the suffrage, and a restriction upon that power. It is equivalent to saying, “The Legislature will have power to regulate the suffrage subject to the guaranty in this article contained, but in making such regulations persons convicted of infamous crimes shall be excluded from the elective franchise.” [That is, the Legislature shall not permit them to vote.]