laws of the states, whether the legislative authority under which they are passed is concurrent with that of congress, or exclusive of that of congress.... 5. Since the rights, privileges, and immunities, both of person and property, to be accorded to foreigners in our country and to our citizens in foreign countries are a proper subject of treaty provision and within the limits of the treaty-making power, and since such rights, privileges, and immunities may be given by treaty in contravention of the laws of any state, it follows of necessity that the treaty-making power alone has authority to determine what those rights, privileges, and immunities shall be. No state can set up its laws as against the grant of any particular right, privilege, or immunity any more than against the grant of any other right, privilege, or immunity. No state can say a treaty may grant to alien residents equality of treatment as to property but not as to education, or as to the exercise of religion and as to burial but not as to education, or as to education but not as to property or religion. That would be substituting the mere will of the state for the judgment of the president and senate in exercising a power committed to them and prohibited to the states by the constitution. ... CHAPTER XVII THE STATE CONSTITUTION 110. PROVISION FOR CONSTITUTIONAL CONVENTION A constitutional convention may, as a rule, be called only in accordance with the existing state constitution. Most of these instruments make provision, to some extent at least, for the calling of conventions. However, the lack of such provision does not necessarily prevent the holding of conventions, as in all states but one (Rhode Island) the courts have affirmed the inherent right of the legislature to provide for conventions without specific authorization. In at least one state (North Dakota), the right of the legislature itself to act in effect as such constitutional convention has been upheld. a. Constitutional Provision for Constitutional Convention [Illinois Constitution of 1870, Art. XIV, Sec. 1.] Whenever two-thirds of the members of each house of the general assembly shall, by a vote entered upon the journals thereof, concur that a convention is necessary to revise, alter or amend the constitution, the question shall be submitted to the electors at the next general election. If a majority voting at the election vote for a convention, the general assembly shall, at the next session, provide for a convention, to consist of double the number of members of the senate, to be elected in the same manner, at the same places, and in the same districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meeting, fix the pay of its members and officers, and provide for the payment of the same, together with expenses necessarily incurred by the convention in the performance of its duties. Before proceeding, the members shall take an oath to support the constitution of the United States, and of the State of Illinois, and to faithfully discharge their duties as members of the convention. The qualification of members shall be the same as that of members of the senate, and vacancies occurring shall be filled in the manner provided for filling vacancies in the general assembly. Said convention shall meet within three months after such election, and prepare such revision, alteration or amendments of the constitution as shall be deemed necessary, which shall be submitted to the electors for their ratification or rejection, at an eleetion appointed by the convention for that purpose, not less than two nor more than six months after the adjournment thereof: and unless so submitted and approved by a majority of the eleetors voting at the election, no such revision, alterations or amendments shall take effect. b. Power of Legislature in North Dakota [Opinion of Attorney General Langer, in Election Laws of the Gov. Lynn J. Frazier, State Capitol, Bismarck, North Dakota. Honorable Sir: I have your request, under date of January 13, 1917, for an opinion as to the legality of House Bill No. 44. This is a Concurrent Resolution, embodying a new or revised Constitution and composed of over two hundred different sections, besides a "Schedule" which provides, among other things, that the proposed Constitution shall be submitted to the people for adoption or rejection at a special election to be held on the last Wednesday in June, 1917. In giving this opinion I shall confine myself to the single question of the legality of the method of procedure by which this revision is sought to be brought about, and shall make no comment upon the wisdom or expediency of such method or upon the substance of particular sections contained in such resolution. At first glance and in the light of methods or reasoning applicable to ordinary statutory and constitutional questions, it might seem that the proposed method of revision is illegal, but when viewed in its true light-that of the fundamental principles of our government and of the people's sovereignty-in my opinion, formed after carefully briefing the strongest objections to it, the proposed method of revision is clearly constitutional and the arguments in favor of its legality unanswerable. An examination of our State and Federal Constitution shows that no procedure for revision or for the adoption of a new State Constitution, as an organic [sic], is provided for. The Constitution of North Dakota, Section 2, however, does contain the following declaration: "All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require." Moreover, in our system of government, constitutions derive their power from the people, not the people from constitutions. The rights and powers of the people existed before a constitution was formed. In other words, before the establishment of a constitution, the people possessed sovereign power. That power, they still possess, except in so far as they may have delegated it to State or National Governments, or have voluntarily restricted themselves in its exercise under their constitutions. In determining what portion of the sovereign power the people have temporarily parted with under their constitutions, the rule is clear, namely, that the people have delegated no sovereign power unless such delegation of power is set forth in express terms. In the United States, out of their original sovereign power, the people have carved, first, the Federal Constitution, with its delegation of power to the National Government, and second, the State Constitutions, with their delegations of power to the various state governments. Neither National nor State Governments have any powers except such as are conferred upon them directly, nor are the people restricted in the exercise of their sovereignty, except as they have expressly laid down restrictions in the Federal and State Constitution. Many of our states have adopted express methods of revising their constitutions through constitutional conventions. However, for generations, many states had no express method of revision, and at least a dozen states, North Dakota being among them, have none today. However, in view of the admitted theory of the people's sovereignty it is universally agreed that the people of a state do have the inherent power to revise their constitutions, that is, to adopt a new and complete organic law, even though no special method for the exercise of such power is prescribed in the existing constitution. The power of revision being thus conceded on all sides, the question then arises as to how states without any express method of revision could in the past, or can today, proceed to revise their constitutions. The answer to this question is that the people of such states, being without practical facilities to convene as a body and initiate new constitutions themselves, have in their legislatures, instruments through which the initiative may be taken to bring before the people, for ratification or rejection, new and revised constitutions. This practice is inevitable, and is founded upon the broad right of the people to retain their inherent power of revision unstifled by a mere lack of express methods of procedure for revision. In initiating revision and in setting in motion machinery by which revision is placed before the people so that they may act upon them in their sovereign capacity, it is conceded on all sides that legislatures do not act in a strictly legislative capacity, but are of necessity for the time being mere instruments for setting in motion the sovereign power of the people. This right of the legislature is conceded by every authority on constitutional law, upon the simple ground of necessity. The sovereign power by the people works to that extent through the legislature, as the human body breathes through the mouth or nostrils for the reason that no other method of breathing is provided by nature. Thus far authorities are in harmony and there is no ground for dispute. Bearing these facts in mind: 1. That the people, in the absence of express provisions as to procedure in their constitutions, nevertheless, have the right of revision, and 2. That the initial step to start the sovereign power in motion must under circumstances be taken by state legislatures, the question further narrows down to the particular method which a state legislature must pursue in initiating a revision. This, in my opinion, brings us to the crucial point of the entire question. In cases where constitutions contain no express provision for procedure and no express restriction on procedure, and where it is conceded that the peope have the power to revise their constitutions, as well as that the legislature must initiate such revision by one method or another, IN MY OPINION ANY METHOD FOLLOWED BY THE LEGISLATURE IN PLACING BEFORE THE PEOPLE A NEW CONSTITUTION FOR ADOPTION OR REJECTION IN THEIR SOV EREIGN CAPACITY IS LEGAL. Any other conclusion is a denial of the sovereign power of the people or a partial restriction of that power utterly unwarranted by our Constitution and accepted rules of constitutional interpretation. It would be in direct contravention of our American theory that popular sovereignty is restricted in the exercise of its powers only by express written prohibitions contained in constitutions, as set forth in the first section of this opinion. The truth is that the argument in favor of revision by constitutional convention as opposed to revision by commission or |