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1. L76
,_I[|lJ
National Constitutional
Consequences
its Possible
What Limitations
Can
Imposed
Be
Powers
Upon the
of
of
and
Convention
States?
United
The author
states, as a fact not generally known, that twenty-eight States of the Union have
'already applied to Congress to call suchla convention, asis provided for by section
I, article 5, of the Constitution of the United States. If this is true it is the most
momentous
makes it worthy
of the most
careful consideration.
Mr. Tuller, after enumerating by their names the twenty-eight States, pro
ceeds to cite the language of the resolutions
consin,
passed by four,
viz.5:
_
he
I::0uisi;a'naE,
__~ 10* _ -1
ort_,he
_p:ardticuI'ar_
'named, nor why he did not publish the language of all the resolutions
Moreover,
he avers, whenever
be
Wis
_
&
jour
as passed
fully complied with, and that Congress will then have no option nor discretion
about the matter, but must proceed to call a convention to propose amendments.
he allows no
as to the
more States shall apply, those three will complete the required number, and Con
gress must proceed to call a convention
of proposing
amend
ments; and if it fail to do so, a court will, upon the request of any citizen, issue a
mandamus
terial .
Leaving out of the question the power or the right of a court to issue a man
damus in such a case, may he not be mistaken
It
a convention
to
propose amendments
of
of our nationality.
a Confedera
We have reached
a grander
mere agencies to conduct the business of the real sovereign, the people of the
United States.
It certainly will
ever standpoint you may view it, whether of power, wealth, population, influence
Confederation, and in
1787 sent
delegatesto
a convention,
adopted
Articles of
held in Philadelphia,
bn_thZ=.irIface
teeh S.t..at.es::_by.whf3:h they were adopted: that convention, which has been glori
fied.'1ri.Arrieric.ari history as the best and wisest and greatest assemblage of states
men that ever framed a government;
circumstances
of the country and needs of the people, those old articles of confed
eration were worthless, frankly avowing that they were exceeding their authority,
cast off the limitations under which they were elected, and proceeded to frame an
entirely new and radically different form of Constitution, and declared that
be operative
should
It
it
Const. Lim.,
Ed. p.
See
Cooley on
9.
Art.
XIII:
I will
of
be agreed to
in a Congress
State.
the United States, and be afterwards confirmed by the legislatures of every
These Articles of Confederation were the Constitution Of the United States, under
which the Convention of 1787 was elected. , That convention refused to be bound
by the limitation which that Constitution imposed upon its action, set it aside
ratified, not
and declared that the new Constitution should be operative, when
by the legislatures of thirteen States, as provided by Art.
XIII,
This precedent establishes the position that the people of the United States,
when assembled in Convention for the purpose of amending their Constitution
Constitution,
are not bound by limitations. imposed upon their delegates, by the
Constitution,
under which they were elected, but may proceed to adopt a new
in the
and submit it for ratification in a manner, different from that prescribed
For example, Article V. of our Constitution provides that
former Constitution.
the
amendments shall beyvalid, when ratified by the legislatures of three-fourths of
But a convention, following
States, or by Conventions in three-fourths thereof.
the precedent set by that of 1787, may declare its new Constitution to be valid
when ratified by the legislatures of a majority, or by Conventions held in a ma
.n
it
of
1776 was a
It
framed
a new
The Congress
government,
and
promptly put it into operation, without submission to the people or States for
See Cooley on Const. Lim., 7 Ed. p. 8.
ratification.
I
4333362
In
1660 a
Again in
1689 a
which proceeded to change the Constitution without asking the assent of any one.
In 1791 the Constituent Assembly of France adopted a Constitution, which
abolished royalty, the privileges of the nobles, and completely
government,
revolutionized
the
it without ratification.
and promulgated
Constitution,
it for ratification.
Only six years ago the Convention of the State of Virginia adopted a new
Constitution, which was promulgated as the Constitution of the State, without
ratification. The previous Constitution of that State, adopted in
1869, and ap
proved by the vote of the people, provided, as follows, in the Article concerning
amendments or reviews:
which shall deny or in any way impair the right of suffrage, or any civil or political
by this Constitution, except for causes which apply to all per
sons and classes without distinction.
This proviso was, of course, intended
for the protection of the negroes in their civil and political rights, and the equal
right of suffrage, then for the first time conferred on the colored people in Virginia.
The Virginia Convention totally changed the basis of suffrage, paying little
or no regard to the foregoing provisions or li-mitations.
After adopting a Constitution they proceeded to promulgate and put it in
force without submission or ratification, and their action was sustained by the
Virginia Reports.
Supreme Court of Appeals, in Taylor's case.
right,
as conferred
The prevailing doctrine in this State seems to be that one generation, or the
people of one century, cannot bind the people of another generation or century by
Constitution or legislation anv longer than until a Convention is lawfully assem
bled to change the government; and that when such a Convention is assembled,
its powers are not limited by the provisions of the former Constitutions. This
doctrine is confirmed by the only Convention, which in the United States ever
submitted
a new
The Convention of
as to
1787, as
popular vote.
XIII
That Con
which required the confirmation of the legislatures of every State.
vention decided that the new Constitution should be submitted to the people, and
when
Madisons letter).
it should
be
effective:
(See
Mr.
by Jamison on Conventions.
seem to be a
1787,
one hundred millions of people of the United States, living one hundred and twen
ty-five years later, from changing their government; that thirteen little States, in
a raw unsettled country, and condition of society, could make laws or Constitu
tions, to bind 48 or 46 great States, living in the midst of the most wonderful
changes, the grandest discoveries, the most complex conditions,
civilization ever imagined by the human brain; that they could make it obligatory
upon such a nation, never to change those forms of government, or that Constitu
Yet that
tion; except in a manner prescribed by their dead and gone ancestors?
very Convention of 1787, which repudiated the authority, or binding force, of
Article XIII of the Confederation, has sought in Art. V of their Constitution,
to bind their descendants, and prohibit them from making amendments or
a new
amendments;
which, in either
case, shall
of three
thereof, as the
Pro
vided that no amendment, which may be made prior to the year 1808 shall in any
manner affect the first and fourth clauses in the ninth section of Article
I; and that
no State, without its consent, shall be deprived of its equal suffrage in the Senate."
It
does seem a little curious that such a body of wise statesmen as composed
the Convention, which framed the Constitution of the United States, should sup
that they could bind a future Convention, and limit its powers, in respect to
that very question of the mode of ratification, as to which they were demonstrat
pose
ing, that they could not be bound by the Constitution under which they were
elected.
If
tures of the several States, but may adopt some other mode, for instance, it may
It might
cause, what
the French call a plebiscite, or vote of all the people to be taken, and declare that
so
ing for a Convention, to consider seriously, what might be its potentialities, and
how their interests might possibly
'
be effected?
Amongst the twenty-eight, which Mr. Tuller says, have adopted such resolu
tions,
as Delaware,
save the
millions of people of the great State of New York, wants to change the
mode of electing Senators, so that they shall be elected by the people, and repre
idea that a Convention might say, if the Senators are to represent the people, let
the number from each State be based upon its population; instead of having two
from each State, let there be one Senator for each million of population.
Such a
change would be enormously popular in the great States, which are chafing under
the existing inequality. When we think of the revolution, which might be wrought
Convention,
is
it not
a bold
Mr. Tuller?
In dealing with this novel question, the first thing to
gress has never given an
be noted
is
it,
that Con
It
of our Constitution.
has never legislated upon this subject, nor provided under what circumstances
or how
it
be represented,
should be constituted.
Mr. Tuller says, when three more States apply, Congress will have no discre
The very first thing Congress will have to do,
be, to exercise its discretion
if
or judgment in determining,
whether
the requisite
V,
above quoted.
Mr. Tuller cites the resolutions of Louisiana, Kansas, Wisconsin and Pennsyl
vania.
language of Article
is
The
to change the mode of electing United States Senators; but for proposing amend
ments, as asked for by Louisiana and Kansas.
by the four States, in order to show precisely what each State has asked:
L0 UISIANA.
Whereas we believe that Senators of the United States should be elected directly
and
Whereas to authorize such direct election an amendment to the Constitution of
the voters;
by
United
the
States
Whereas
it clear
made
the
is necessary; and
failure of
Congress
to
to the States
has
President of the
KANSAS.
Whereas there is a wide-spread and rapidly growing belief that the Constitution
United States should be so amended as to provide for the election of the United
of
States Senators by direct vote of the people of the respective States; and
the
to the
the Congress
amendments
for
the purpose
of proposing
to the
PENNSYL VANIA.
Whereas a large number of State Legislatures have at various times adopted
memorials and resolutions in favor of election of United States Senators by popular
vote; and
Whereas the national House of Representatives has on four separate occasions,
within
change
in
the method
United States Senators, which were not adopted by the Senate; and
V of the Constitution of the United States provides that Con
gress, on the application of the Legislatures of two-thirds of the several States, call a
convention for proposing amendments, and believing there is a general desire upon the
of
electing
Whereas Article
part of the citizens of the State of Pennsylvania that the United States
should be elected by a direct vote of the people: Therefore be it
Senators
Resolved (if the House of Representatives concur), That the Legislature of the
State of Pennsylvania favors the adoption of an amendment to the Constitution which
shall provide for the election of United States Senators by popular vote, and joins with
other States of the Union in respectfully requesting that a convention be called for the
purpose of proposing an amendment to the Constitution of the United States as pro
vided for in Article V of the said Constitution, which amendment shall provide for a
change
chosen
in
in
of
of
be
the people.
WISCONSIN.
Whereas Article
Congress,
whenever
amendments
this Constitution,
the several
States or by convention
in
Whereas the House of Representatives of the Congress of the United States has
on four separate occasions passed bya two-thirds vote a resolution proposing an amend
ment to the Constitution providing for the election of United States Senators by direct
vote
the authority of Article V of the Constitution of the United States, application is hereby
made to Congress to forthwith call a constitutional convention for the purpose of sub
mitting
to the States
to the
for the election of United States Senators by direct vote of the people.
Mr. Tuller may say the trifling difference between amendments, and one
But it is of all the consequence in the
specific amendment, is of no consequence.
viding
world, and
call a convention,
ment.
The conventioh, which Congress would have to call, would have unlimit
Of
course,
the
province
of
Again, when Congress comes to consider this very grave question, it will pro
bably take the view that Article
States should at, or about, the same time concur in asking a convention.
It
appears from
case the
applications of twen
tion of Senators is dropped, and twenty or thirty or fifty or one hundred years
hence, an agitation is carried on for a constitutional amendment to prohibit poly
Three more States ask for a conventon to propose an amendment for that
gamy.
Would Congress
purpose.
question
twenty-eight, and
a wise discretion?
Suppose again, that some of the twenty-eight States, gaining more light upon
the great potentialities of a convention,
formerly passed.
tion in determining,
number who
If it
have
applied?
be made
such officials as may be designated to receive them; third, whether if a State has
made its application, it may be withdrawn before the period for receiving the ap
It
seems to be
States shall ratify the pending amendment, concerning an income tax, at any time
during the next thousand years, it will become a part of the Constitution.
It
is most respectfully submitted that this ought not to be, if it be, the law.
be required
time
and during that time any State should be allowed to reconsider the subject, and
withdraw
its assent.
the.
ratifica
tion by the States of amendments, proposed by the Congress, are subjects of too
much importance
may be
set aside,
a convention
as to
JAMES
H.
DOOLEY.
and Kanawha Canal. The C&O purchased the Richmond and Allegheny Railroad and integrated
them into the C&O in 1889 [2]), and then Dooley served as a director of the Chesapeake and Ohio
Railway.
In 1893, Major Dooley had a large stone mansion built on a large estate overlooking the James
River in the western portion of Richmond, which he and his wife named Maymont. By 1912 the
Dooleys also completed an enormous mountain retreat, Swannanoa, in the Blue Ridge Mountains
at Rockfish Gap near Waynesboro, Virginia in Nelson County.
According to Richmond's Maymont Foundation, "Major Dooley's leadership of various civic
endeavors runs as a continuous thread through the history of Richmond, from the early 1870s
through the early 1920s." He succeeded his father as a board member of St. Joseph's Orphanage.
In 1881, he brought together Catholics and Episcopalians to raise money for relief in Ireland.[3]
Dooley also served on the board of the Medical College of Virginia and, in 1919, gave the funds
to construct the Dooley Hospital (now part of Virginia Commonwealth University).
Major Dooley died in Richmond at the age of 81. He was initially buried with his former
Confederate comrades in Hollywood Cemetery, and later reinterred with his wife Sallie in a
mausoleum at Maymont.
James Dooley is still considered one of the largest donors in the history of the Diocese of
Richmond.[4] His family had long supported Catholic causes. His father (the original Major) had
supported St. Joseph's Orphanage; his brother John attended Georgetown Seminary but died in
1873 before ordination; and his sister Sarah entered the Visitation monastery in Richmond. The
Dooleys, who were themselves childless, left a record 3 million dollars to the St. Joseph's
Orphanage, which permitted it to build "St. Joseph's Villa" adjacent to Maymount on the North
Side of Richmond in Henrico County.[5] The charitable organization continues serving families
and children today.
Major Dooley left their home, Maymont, to the City of Richmond, to be used as a park and
museum after Mrs. Dooley's death. Today, Maymont Park is a major Richmond attraction on the
James River, with a museum, formal gardens, native wildlife exhibits, nature center, carriage
collection, and children's farm and petting zoo.
Mrs. Sallie Dooley gave Swannanoa to her husband's two remaining sisters upon her death, and
while it subsequently changed ownership several times, the mansion remains, and is listed on the
National Register of Historic Places. She also gave a half million dollars to build the Richmond
Public Library as a memorial to her husband.