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maxim expresses the weight of probability equally in cases of great and of small magnitude. But there is always a doubt; and between the cases indicated there is this wide difference, that in ordinary contracts, it is possible to enforce the construction which our courts shall pronounce the true one; whilst in the case of constitutional provisions, regulating great organic movements, and presenting barriers to the attainment of what the people generally desire, to hold such a maxim applicable would be, in many cases, to make that revolutionary which perhaps was not so. Where the intention of the framers of the Constitution is doubtful, the people, assuming power under the broader construction, should have the benefit of the doubt; and that all the more, because, in opposition to them, our courts are comparatively powerless. If a largely preponderating majority favored a change, they would, as above said, be likely to effect it, right or wrong. It is infinitely better that, where no principle is violated, a Constitution should be so construed as to make their action legal rather than illegal.
However this may be, it has been ruled by high judicial authority that the maxim, expressio unius est exclusio alterius, is applicable, as I have contended, rather to deeds and contracts between private individuals than to the provisions of a Constitution.1
$ 574. On the other hand, it must be admitted, there is authority to the contrary in an opinion already referred to, delivered in 1833, by the judges of the Supreme Court of Massachusetts.
The Massachusetts Constitution of 1821 had made provision for making specific amendments to that instrument through the agency of the legislature, but not for calling a Convention. In 1833, the question being before the legislature of submitting to the people the expediency of calling a Convention to alter or amend the Constitution in some particular parts, a doubt was raised whether it was competent for the legislature to take any steps towards calling a Convention, inasmuch as the Constitution had provided another mode of effecting the same object. The following question was, therefore, submitted to the judges of the Supreme Court : ? _ “ Can any specific and particular amendment or amendments to the Constitution be made in any other manner than that prescribed in the ninth Article of the amendments adopted in 1820 ?”
1 See Barto v. Himrod, 4 Seld. R. 483.
2 Chapter III. Article II. of the Constitution, provided as follows:- “ Each branch of the legislature, as well as the Governor and Council, shall have
To this question the judges replied, that, “ considering that, previous to 1820, no mode was provided by the Constitution for its own amendment, that no other power for that purpose than in the mode alluded to, is anywhere given in the Constitution, by implication or otherwise, and that the mode thereby provided appears manifestly to have been carefully considered, and the power of altering the Constitution thereby conferred to have been cautiously restrained and guarded, we think a strong implication arises against the existence of any other power, under the Constitution, for the same purposes.”
"1 $575. Noting that the judges rest their opinion merely upon implication, thus substantially deciding that the maxim, “expressio unius est exclusio alterius," does apply to the construction of Constitutions as well as to deeds and other contracts between man and man, I shall merely add that, notwithstanding that opinion, a Convention was called in 1853, under the same Constitution, and that although its constitutionality was denied by some of the delegates, it was most ably vindicated by the foremost legal minds in the body, including such names as Choate, Parker, and Marcus Morton, — the latter, one of the judges who rendered the opinion. On the other hand, the constitutional amendments framed by the Convention of 1853 were all rejected by the people, though only by a majority of about 4000 in a vote of 140,000. Of the probable grounds for this adverse vote I am not advised ; and in the absence of evidence it is as fair to presume it arose from hostility to the measures as from doubt of the constitutional validity of the Convention.
§ 576. Whether the principles announced in the last five sections are applicable to the case of amendments to the Fed. eral Constitution, admits of considerable doubt. The fifth Article of that Constitution provides, that “the Congress, when
authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law, and upon solemn occasions."
1 For the whole opinion of the judges, see Appendix C, post. This opinion, it will be observed, was given at an early day in the history of the post-Rerolutionary Conventions. Precedents have since then established a different rule.
ever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution; or, on the application of the legislatures of two-thirds of the several States, shall call a Convention for proposing amendments." These provisions, though in terms imperative, are not restrictive, and, therefore, are to be classed with the variety above styled permissive, as contrasted with such as contain negative terms. Judging by the general rule of construction shown to obtain in reference to Constitutions, then, it would seem clear, that the national legislature might call a Convention, on its own motion, by the action of a majority of both houses, followed by the approval of the President of the United States — the constitutional provision merely requiring that it shall do so “on the application of the legislatures of two-thirds of the several States,” which evidently is not exclusive of other cases.
Without entering at any great length into the discussion of this question, it may be said, in opposition to the view just indicated, that there is a difference between the Federal and State Constitutions in respect of the derivation of powers by implication. We have seen that Congress, the legislature of the Union, possesses only such powers as are expressly given to it, and as are necessary to the execution of its express powers ; while the legislatures of the States have general powers of legislation, save where restrictions have been imposed. Upon this difference is founded the doubt suggested in respect to the power of Congress to initiate amendments or to call a Convention, under conditions varying from those set forth in the fifth Article of the Constitution. The provision, that in a contingency particularly specified, Congress shall call a Convention or propose amendments, cannot, perhaps, without a reversal of the rule of construction heretofore applied to the Federal Constitution, be held, by implication, to warrant the doing of either of those things under different circumstances or conditions.
COMPLETE LIST OF CONVENTIONS HELD IN THE UNITED STATES.
N. B. - In the Remarks appended to the several Conventions in this list, the abbreviation
“Sub.," indicates that the body to which it refers submitted, and “Not sub.," that it did not submit, its work to the people for adoption or rejection.
The section-marks refer to the sections ante, where the Conventions indicated are described or referred to. The Conventions characterized as “ Abortive" agreed upon no Constitution or Amendments, and therefore submitted none to the people.
DATE OF ASSEMBLING.
DATE OF ADJOURN
1. Continental Cong. (20) May 10, 1775. March 1, 1781. This body not properly
a Convention, but for convenience classed as such, like the Revolutionary Conventions in general. Sub. 88 159
--162, 502, 503. 2. New Hampshire, Dec. 21, 1775. Jan. 5, 1776. Not sub. § 131. 3.
June 10, 1778. June 5, 1779. Sub. S 132.
2d Tues. June, 1781. Oct. 31, 1783. Sub. 132. 5
1788. June 21, 1788. Called to ratify the Fed
eral Const. § 167. 6
September 7, 1791. Sept. 7, 1792. Sub. § 219. 7. November 6, 1850. April 17, 1851. Sub. $$ 217, 218. The
amendments proposed at the first session in 1850 were rejected by the people. Of those proposed at the second session in 1851, one
only was adopted. 8. South Carolina,
1776. March 26, 1776. Not sub. $$ 133, 134. 9. January 5, 1777. March 19, 1778. Not sub. $$ 135, 137,
491. 10. May 12, 1788. May 23, 1788. Called to ratify the Fed
eral Const. § 167. 11.
1790. June 3, 1790. Not sub. $ 219. 12December 17, 1860. Jan. 5, 1861. Not sub. Secession Con
vention. $S 247-249. 13. September 13, 1865. Sept. 29, 1865. Not sub. Reconstruction
Conv. $$ 250-259. 14. Virginia,
May 6, 1776.
June 29, 1776. Not sub. 188. 15. June 2, 1788. June 27, 1788. Called to ratify the Fed
eral Const. § 167. 16.
October 5, 1829. Jan. 15, 1830. Sub. $$ 219, 508, 509. 17.
October 14, 1850. Aug. 1, 1851. Sub. $$ 219, 508, 509. 18. February 13, 1861.
1861. Sub. Secession Conven
tion. $8 186, 247-249.