JOSUE JAVELLANA, petitioner vs.

THE EXECUTIVE SECRETARY, THE

SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE and THE
SECRETARY OF FINANCE, respondents. / VIDAL TAN, J. ANTONIO ARANETA,
ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE [
SEPARATE OPINION, ANTONIO, J. ]

1973-03-31 | G.R. No. L-36142 / No. L-36164 / No. L-36165 / No. L-36236 / No. L-36283

SEPARATE OPINION

ANTONIO, J.:

In conformity with my reservation, I shall discuss the grounds for my concurrence.

It is my view that to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in times of a grave
emergency, when the legislative branch of the government is unable to function or its functioning would
itself threaten the public safety, the Chief Executive may promulgate measures legislative in character,
for the successful prosecution of such objectives. For the "President's power as Commander-in-chief has
been transformed from a simple power of military command to a vast reservoir of indeterminate powers
in time of emergency . . . In other words, the principal canons of constitutional interpretation are . . . set
aside so far as concerns both the scope of the national power and the capacity of the President to gather
unto himself all constitutionally available powers in order the more effectively to focus them upon the
task of the hour." (Corwin, The President: Office & Powers, pp. 317, 318, [1948]).

1. The proclamation of martial rule, ushered the commencement of a crisis government in this country. In
terms of power, crisis government in a constitutional democracy entails the concentration of
governmental power. "The more complete the separation of powers in a constitutional system, the more
difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of crisis . . . The
power of the state in crisis must not only be concentrated and expanded, it must be freed from the
normal system of constitutional and legal limitations. One of the basic features of emergency powers is
the release of the government from the paralysis of constitutional restraints" (Rossiter, Constitutional
Dictatorship, p. 290).

It is clearly recognized that in moments of peril the effective action of the government is channeled
through the person of the Chief Executive. "Energy in the executive", according to Hamilton, "is essential
to the protection of the community against foreign attacks . . . to the protection of property against those
irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the
security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." (The
Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debts ease (158
U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the full and free exercise of all
national powers and the security of all rights entrusted by the Constitution to its care". The marshalling
and employment of the "strength of the nation" are matters for the discretion of the Chief Executive. The
President's powers in time of emergency defy precise definition since their extent and limitations are
largely dependent upon conditions and circumstances.

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2. The power of the President to act decisively in a crisis has been grounded on the broad conferment
upon the Presidency of the Executive power, with the added specific grant of power under the
"Commander- in-Chief" clause of the constitution. The contours of such powers have been shaped more
by a long line of historical precedents of Presidential action in times of crisis, rather than judicial
interpretation. Lincoln wedded his powers under the "commander-in- chief" clause with his duty "to take
care that the laws be faithfully executed", to justify the series of extraordinary measures which he took -
the calling of volunteers for military service, the augmentation of the regular army and navy, the payment
of two million dollars from unappropriated funds in the Treasury to persons unauthorized to receive it, the
closing of the Post Office to "treasonable correspondence", the blockade of southern ports, the
suspension of the writ of habeas corpus, the arrest and detention of persons 'who were represented to
him" as being engaged in or contemplating "treasonable practices" - all this for the most part without the
least statutory authorization. Those actions were justified by the imperatives of his logic, that the
President may, in an emergency thought by him to require it, partially suspend the constitution. Thus his
famous question: "Are all laws but one to be unexecuted, and the Government itself go to pieces lest that
one be violated?" The actions of Lincoln "assert for the President", according to Corwin, "an initiative of
indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwin,
The President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in
meeting the domestic problems as a consequence of a great war, an indefinite power must be attributed
to the President to take emergency measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative enlargement during the first and second
World Wars. From its narrow concept as an "emergency" in time of war during the Civil War and World
War I, the concept has been expanded in World War II to include the "emergency" preceding the war
and even after it. "The Second World War" observed Corwin and Koenig, was the First World War writ
large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in wartime" . . .
burgeoned correspondingly. The precedents were there to be sure, most of them from the First World
War, but they proliferated amazingly. What is more, Roosevelt took his first step toward war some fifteen
months before our entrance into shooting war. This step occurred in September, 1940, when he handed
over fifty so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been
recently reconditioned and recommissioned . . . Actually, what President Roosevelt did was to take over
for the nonce Congress's power to dispose of property of the United States (Article IV, Section
3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency Today, New York University
Press, 1956; sf Corwin, The President: Office and Powers, 1948.)

The creation of public offices is a power confided by the constitution to Congress. And yet President
Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause created
"offices" which were copied in lavish scale by President Roosevelt in World War II. In April 1942,
thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the basis of his
powers as "Commander-in-Chief", he issued an executive order seizing the North American Aviation
plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified
by the government, as the exercise of Presidential power growing out of the "duty constitutionally and
inherently resting upon the President to exert his civil and military as well as his moral authority to keep
the defense efforts of the United States a going concern" as well as "to obtain supplies for which
Congress has appropriated money, and which it has directed the President to obtain." On a similar
justification other plants and industries were taken over by the government. It is true that in Youngstown
Sheet & Tube vs. Sawyer (343 U.S. 579; 72 3. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of
the United States did not sustain the claims that the President could, as the Nation's Chief Executive and
as Commander- in-Chief of the armed forces, validly order the seizure of most of the country's steel mills.
The Court however did not face the naked question of the President's power to seize steel plants in the
absence of any congressional enactment or expressions of policy. The majority of the Court found that
this legislative occupation of the field made untenable the President's claim of authority to seize the
plants as an exercise of inherent executive power or as Commander-in-Chief Justice Clerk in his
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concurrence to the main opinion of the Court, explicitly asserted that the President does possess, in the
absence of restrictive legislation, a residual or resultant power above or in consequence of his granted
powers, to deal with emergencies that he regards as threatening the national security. The same view
was shared with vague qualifications by Justices Frankfurter and Jackson, two of the concurring Justices.
The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting
with approval a passage extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the
President to order withdrawals from the public domain, not only without Congressional sanction but even
contrary to Congressional statutes.

It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view
that the President in times of a grave crisis does not possess a residual power above or in consequence
of his granted powers, to deal with emergencies that he regards as threatening the national security. The
lesson of the Steel Seizure case, according to Corwin and Koenig, "Unquestionably . . . tends to
supplement presidential emergency power to adopt temporary remedial legislation when Congress has
been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given
situation." (Corwin and Koenig, The Presidency Today, New York University Press, 1956).

The accumulation of precedents has thus built up the presidential power under emergency conditions to
"dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps
in the law, or even to supersede it so far as may be requisite to realize the fundamental law of native and
government, namely, that as much as may be all the members of society are to be preserved." (Corwin
and Koenig, The Presidency Today).

In the light of the accumulated precedents, how could it be reasonably argued therefore, that the
President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102, since these measures were considered indispensable to effect the desired reforms at the shortest
time possible and hasten the restoration of normalcy? It is unavailing for petitioners to contend that we
are not faced by an actual "shooting war" for today's concept of the emergency which justified the
exercise of those powers has of necessity been expanded to meet the exigencies of new dangers and
crisis that directly threaten the nation's continued and constitutional existence. For as Corwin observed:
". . . today the concept of 'war' as a special type of emergency warranting the realization of constitutional
limitations tends to spread, as it were, in both directions, so that there is not only 'the war before the war,'
but the 'war after the war.' Indeed, in the economic crisis from which the New Deal may be said to have
issued, the nation was confronted in the opinion of the late President with an 'emergency greater than
war'; and in sustaining certain of the New Deal measures the Court invoked the justification of
'emergency.' In the final result the constitutional practices of wartime have moulded the Constitution to
greater or less extent for peacetime as well, and seem likely to do so still more pronouncedly under fresh
conditions of crisis." (Corwin, Ibid. p. 318.)

The same view was expressed by Rossiter thus:

"The second crisis is rebellion, when the authority of a constitutional government is resisted openly
by large numbers of its citizens who are engaged in violent insurrection against the enforcement of
its laws or are bent on capturing it illegally or even destroying it altogether. The third crisis, one
recognized particularly in modern times as sanctioning emergency action by constitutional
governments, is economic depression. The economic troubles which plagued all the countries of
the world in the early thirties invoked governmental methods of an unquestionably dictatorial
character in many democracies. It was thereby acknowledged that an economic existence as a
war or a rebellion. And these are not the only crisis which have justified extraordinary
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 governmental action in nations like the United States. Fire, flood, drought, earthquake, riots, and
great strikes have all been dealt with by unusual and often dictatorial methods. Wars are not won
by debating societies, rebellions are not suppressed by judicial injunctions, the reemployment of
twelve million jobless citizens will not be effected through a scrupulous regard for the tenets of free
enterprise, and hardships caused by the eruptions of nature cannot be mitigated by letting nature
take its course. The Civil War, the depression of 1933, and the recent global conflict were not and
could not have been successfully resolved by governments similar to those of James Buchanan,
William Howard Taft, or Calvin Coolidge." (Rossiter, Constitutional Dictatorship - Crisis of
Government in the Modern Democracies, p. 6 [1948;).

II

We are next confronted with the insistence of Petitioners that the referendum in question not having
been done in accordance with the provisions of existing election laws, where only qualified voters are
allowed to participate, under the supervision of the Commission on Elections, the new Constitution,
should therefore be declared a nullity. Such an argument is predicated upon an assumption that Article
XV of the 1935 Constitution provides the method for the revision of the constitution, and automatically
apply in the approval of such proposed new Constitution the provisions of the election law and those of
Article V and X of the old Constitution. We search in vain for any provision in the old charter specifically
providing for such procedure in the case of a total revision or a rewriting of the whole constitution.

1. There is clearly a distinction between revision and amendment of an existing constitution. Revision
may involve a rewriting of the whole constitution. The act of amending a constitution, on the other hand,
envisages a change of only specific provisions. The intention of an act to amend is not the change of the
entire constitution, but only the improvement of specific parts of the existing constitution of the addition of
provisions deemed essential as a consequence of new conditions or the elimination of parts already
considered obsolete or unresponsive to the needs of the times. 1 The 1973 Constitution is not a mere
amendment to the 1935 Constitution. It is a completely new fundamental charter embodying new political,
social and economic concepts.

According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the
United States expressly provide merely for methods of amendment. They are silent on the subject of
revision. But this is not a fatal omission. There is nothing that can legally prevent a convention from actually
revising the Constitution of the Philippines or of the United States even were such conventions called merely
for the purpose of proposing and submitting amendments to the people. For in the final analysis it is the
approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Philippine
Political Law, p. 49).

Since the 1936 Constitution does not specifically provide for the method or procedure for the revision or
for the approval of a new constitution, should it now be held that the people have placed such restrictions
on themselves that they are now disabled from exercising their right as the ultimate source of political
power from changing the old constitution which, in their view, was not responsive to their needs and in
adopting a new charter of government to enable them to rid themselves from the shackles of traditional
norms and to pursue with a new dynamism the realization of their true longings and aspirations, except
in the manner and form provided by Congress for previous plebiscites? Was not the expansion of the
base of political participation, by the inclusion of the youth in the process of ratification who after all
constitute the preponderant majority more in accord with the spirit and philosophy of the constitution that
political power is inherent in the people collectively? As clearly expounded by Justice Makasiar in his
opinion, in all the cases cited where the Court held that the submission of the proposed amendment was
illegal due to the absence of substantial compliance with the procedure prescribed by the Constitution,
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the procedure prescribed by the state Constitution, is so detailed, that it specified the manner in which
such submission shall be made, the persons qualified to vote for the same, the date of election and other
definite standards, from which the court could safely ascertain whether or not the submission was in
accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one
of the dissenting opinions involved the application of the provisions of the state Constitution of Minnesota
which clearly prescribed in detail the procedure under which the Constitution may be amended or
revised. 2 This is not true with our Constitution. In the case of revision there are no "standards meet for
judicial judgment". 3

The framers of our Constitution were free to provide in the Constitution the method or procedure for the
revision or rewriting of the entire constitution, and if such was their intention, they could and should have
so provided. Precedents were not wanting. The constitutions of the various states of the American Union
did provide for procedures for their amendment, and methods for their revision. 4

Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the
1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law
shall be is not within Our judicial competence and authority.

Upon the other hand, since our fundamental charter has not provided the method or procedure for the
revision or complete change of the Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature, but through a Convention expressly
chosen for that purpose. The Convention as an independent and sovereign body has drafted not an
amendment but a completely new Constitution, which decided to submit to the people for approval, not
through an act of Congress, but by means of decrees to be promulgated by the President. In view of the
inability of Congress to act, it was within the constitutional powers of the President, either as agent of the
Constitutional Convention, or under his authority under martial law, to promulgate the necessary
measures for the ratification of the proposed new Constitution. The adoption of the new Charter was
considered as a necessary basis for all the reforms set in motion under the new society, to root out the
causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The
people in accepting such procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken. "When the people adopt a
completely revised or new constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322,
326-330), "the framing or submission of the instrument is not what gives it binding force and effect. The
fiat of the people, and only the fiat of the people, can breathe life into a constitution."

This has to be so because, in our political system, all political power is inherent in the people and free
governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of
the 1935 Constitution declares that: "Sovereignty resides in the people and all government authority
emanates from them." Evidently the term people refers to the entire citizenry and not merely to the electorate,
for the latter is only a fraction of the people and is only an organ of government for the election of government
officials.

III

The more compelling question, however is: Has this Court the authority to nullify an entire Constitution
that is already effective as it has been accepted and acquiesced in by the people as shown by their
compliance with the decree promulgated thereunder, their cooperation in its implementation, and is now
maintained by the Government that is in undisputed authority and dominance?

Of course it is argued that acquiescence by the people cannot be deduced from their acts of conformity,
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because under a regime of martial law the people are hound to obey and act in conformity with the
orders of the President, and have absolutely no other choice. The flaw of this argument lies in its
application of a mere theoretical assumption based on the experiences of other nations on an entirely
different factual setting. Such an assumption flounders on the rock of reality. It is true that as a general
rule martial law is the use of military forces to perform the functions of civil government. Some courts
have viewed it as a military regime which can be imposed in emergency situations. In other words, martial
rule exists when the military rises superior to the civil power in the exercise of some or all the functions of
government. Such is not the case in this country. The government functions thru its civilian officials. The
supremacy of the civil over the military authority is manifest. Except for the imposition of curfew hours and
other restrictions required for the security of the State, the people are free to pursue their ordinary concerns.

In short, the existing regime in this country, does not contain the oppressive features, generally
associated with a regime of martial law in other countries. "Upon the other hand the masses of our
people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at
long last, been emancipated - a consummation devoutly wished by every Philippine President since the
1930's. The laborer now holds his head high because his rights are amply protected and respected."* A
new sense of discipline has swiftly spread beyond the corridors of government into the social order.
Responding to the challenges of the New Society, the people have turned in half a million loose firearms, paid
their taxes on undeclared goods and income in unprecedented numbers and amount, lent their labors in
massive cooperation - in land reform, in the repair of dikes, irrigation ditches, roads and bridges, in
reforestation, in the physical transformation of the environment to make ours a cleaner and greener land.
"The entire country is turning into one vast garden growing food for the body, for thought and for the soul."*
More important the common man has at long last been freed from the incubus of fear.

"Martial law has paved the way for a re-ordering of the basic social structure of the Philippines" reported
Frank Valeo to the United States Senate. "President Marcos has been prompt and sure- footed in using
the power of presidential decree under martial law for this purpose. He has zeroed in on areas which
have been widely recognized as prime sources of the nation's difficulties - land tenancy, official
corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows his targets . . . there
is marked public support for his leadership . . ." (Bulletin Today, March 3 and 4, 1973).

In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New York
Times:

During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of
legislators to approve urgently needed reforms. He found his second term further frustrated by
spreading riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia
and Indonesia. Manila claims this war is Maoist-coordinated.

Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will
relinquish them. But, while fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation.

Sharecropping is being ended as more than three million acres of arable land are redistributed

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 with state funds. New roads have been started. The educational system is undergoing revision,
and corruption is diminished. In non-communist Asia it is virtually impossible to wholly end it and
this disagreeable phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian
middle-class to replace the archaic sharecropper-absentee landlord relationship. He is even
pushing a birth control program with the tacit acceptance of the Catholic Church. He has started
labor reforms and increased wages." (Daily Express, April 15, 1973)

As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of counsel
for petitioners:

The new Constitution is considered effective "if the norms created in conformity with it are by and large
applied and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution has
become effective, the acts that appear with the subjective meaning of creating or applying legal norms
are no longer interpreted by presupposing the old basic norm, but by presupposing the new one. The
statutes issued under the old Constitution and not taken over are no longer regarded as valid, and the
organs authorized by the old Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].)

The essentially political nature of the question is at once made manifest by understanding that in the final
analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is
merely declaratory of the fact of approval or ratification, but the legitimacy of the government. It is
addressed more to the framework and political character of this Government which now functions under
the new Charter. It seeks to nullify a Constitution that is already effective.

In such a situation, We do not see how the question posed by petitioners could be judicially decided.
"Judicial power presupposes an established government capable of enacting laws and enforcing their
execution, and of appointing judges to expound and administer them. If it decides at all as a court, it
necessarily affirms the existence and authority of the government under which it is exercising judicial
power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)

In other words, where a complete change in the fundamental law has been effected through political
action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller
Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be
surmounted." 5 Such change in the organic law relates to the existence of a prior point in the Court's
"chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of
powers." 6 It involves in essence a matter which "the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own extra governmental action." 7

The non-judicial character of such a question has been recognized in American law. "From its earliest
opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating dissent in
Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633, 722, 726, 727), "a class of controversies which do not lend
themselves to judicial standards and judicial remedies. To classify the various instances as 'political
questions' is rather a form of stating this conclusion than revealing of analysis . . . The crux of the matter
is that courts are not fit instruments of decision where what is essentially at stake is the composition of
those large contests of policy traditionally fought out in non-judicial forums, by which governments and
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the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar, cannot
be a case of "right" or "wrong" views of the Constitution. It is one of attitudes and values. For there is
scarcely any principle, authority or interpretation which has not been countered by the opposite. At
bottom it is the degree of one's faith - in the nation's leadership and in the maturity of judgment of our
people.

IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court
in its judgment of March 31, 1973 question becomes wholly moot except for this consideration,
that, when the judges as individuals or as a body of individuals come to decide which king or which
constitution they will support and assert to represent, it may often be good judgment for them to
follow the lead of the men who as a practical matter are likely to be looked to by the people as
more representative of themselves and conversely are likely to be more directly in touch with
popular sentiment. If, however, the judges hold too strong views of their own to be able to take this
course, they may follow their own leads at their own hazard. No question of law is involved.
(Political Questions, 38 Harvard Law Review [1924-25], pp. 305-309.)

Barredo, Makasiar and Esguerra, JJ., concur.

APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)

PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY

PROVIDING FOR AMENDMENT AND REVISION

1. Alaska (1959) - Art. XIII. Amendment and Revision.

Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each house
of the legislature. The secretary of state shall prepare a ballot title and proposition summarizing each
proposed amendment, and shall place them on the ballot for the next statewide election. If a majority of the
votes cast on the proposition favor the amendment, it shall be adopted. Unless otherwise provided in the
amendment, it becomes effective thirty days after the certification of the election returns by the secretary of
state.

Sec. 2. Convention. The legislature may call constitutional conventions at any time.
Sec. 3 Call by referendum.If during any ten-year period a constitutional convention has not been held, the
secretary of state shall place on the ballot for the next general election the question: "Shall there be a
Constitutional Convention?" If a majority of the votes cast on the question are in the negative, the question
need not be placed on the ballot until the end of the next ten-year period. If a majority of the votes cast on the
question are in the affirmative, delegates to the convention shall be chosen at the next regular statewide
election, unless the legislature provides for the election of the delegates at a special election. The secretary of
state shall issue the call for the convention. Unless other provisions have been made by law, the call shall
conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but
not limited to, number of members, districts, election and certification of delegates, and submission and
ratification of revisions and ordinances . . .

Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the constitution,
subject only to ratification by the people. No call for a constitutional convention shall limit these powers of
| Page 8 of 19
the convention.

2. California (1879) - Art. XVIII. Amending and Revising the Constitution.

Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be proposed in
the Senate or Assembly, and if two-thirds of all the members elected to each of the two houses shall vote in
favor thereof, such proposed amendment or amendments shall be entered in their Journals, with the yeas and
nays taken thereon; and it shall be the duty of the Legislature to submit such proposed amendment or
amendments to the people in such manner, and at such time, and after such publication as may be deemed
expedient. Should more amendments than one be submitted at the same election they shall be so prepared
and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve
and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting
thereon such amendment or amendments shall become a part of this constitution.

Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of the
Legislature shall deem it necessary to revise this Constitution, they shall recommend to the electors to
vote at the next general election for or against a Convention for that purpose, and if a majority of the
electors voting at such election on the proposition for a Convention shall vote in favor thereof, the
Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of
a number of delegates not to exceed that of both branches of the Legislature, who shall be chosen in the
same manner, and have the same qualifications, as Members of the Legislature. The delegates so
elected shall meet within three months after their election at such place as the Legislature may direct. At
a special election to be provided for by law, the Constitution that may be agreed upon by such
Convention shall be submitted to the people for their ratification or rejection, in such manner as the
Convention may determine. The returns of such election shall, in such manner as the Convention shall
direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer,
and Secretary of State, and compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have been ratified by a majority of
all the votes cast at such special election, to be the Constitution of the State of California.

2. Colorado (1876) - Art. XIX. Amendments.

Sec. 1. Constitutional convention; how called. The general assembly may at any time by a vote of two-thirds
of the members elected to each house, recommend to the electors of the state, to vote at the next general
election for or against a convention to revise, alter and amend this constitution; and if a majority of those
voting on the question shall declare in favor of such convention, the general assembly shall, at the next
session, provide for the calling thereof. The number of members of the convention shall be twice that of the
senate and they shall 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 the necessary
expenses of the convention. Before proceeding, the members shall take an oath to support the constitution of
the United States, and of the state of Colorado, and to faithfully discharge their duties as members of the
convention. The qualifications of members shall be the same as 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 revisions, alterations or amendments to
the constitution as may be deemed necessary; which shall be submitted to the electors for their ratification or
rejection at an election appointed by the convention for that purpose, not less than two nor more than six
months after adjournment thereof; and unless so submitted and approved by a majority of the electors voting
at the election, no such revision, alteration or amendment shall take effect.

| Page 9 of 19
Sec. 2. Amendments to constitution; how adopted.Any amendment or amendments to this constitution may
be proposed in either house of the general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or amendments, together with the ayes and
noes of each house hereon, shall be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general assembly, and the secretary of
state shall also cause the said amendment or amendments to be published in full in not more than one
newspaper of general circulation in each county, for four successive weeks previous to the next general
election for members of the general assembly; and at said election the said amendment or amendments shall
be submitted to the qualified electors of the state for their approval or rejection, and such as are approved by
a majority of those voting thereon shall become part of this constitution.

Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general assembly shall have no power to
propose amendments to more than six articles of this constitution at the same session.

4. Delaware (1897) - Art. XVI. Amendments and Conventions.

Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or

amendments to this Constitution may be proposed in the Senate or House of Representatives; and if the
same shall be agreed to by two-thirds of all the members elected to each House, such proposed amendment
or amendments shall be entered on their journals, with the yeas and nays taken thereon, and the Secretary of
State shall cause such proposed amendment or amendments to be published three months before the next
general election in at least three newspapers in each County in which such newspapers shall be published;
and if in the General Assembly next after the said election such proposed amendment or amendments shall
upon yea and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall
thereupon become part of the Constitution.

Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties;
vacancies. The General Assembly by a two thirds vote of all the members elected to each House may
from time to time provide for the submission to the qualified electors of the State at the general election
next thereafter the question, "Shall there be a Convention to revise the Constitution and amend the
same?; and upon such submission, if a majority of those voting on said question shall decide in favor of
a Convention for such purpose, the General Assembly at its next session shall provide for the election of
delegates to such convention at the next general election. Such Convention shall be composed of
forty-one delegates, one of whom shall be chosen from each Representative District by the qualified
electors thereof, and two of whom shall be chosen from New Castle County, two from Kent County and
two from Sussex County by the qualified electors thereof respectively. The delegates so chosen shall
convene at the Capital of the State on the first Tuesday in September next after their election. Every
delegate shall receive for his services such compensation as shall be provided by law. A majority of the
Convention shall constitute a quorum for the transaction of business. The Convention shall have power
to appoint such officers, employees and assistants 'as it may deem necessary, and fix their
compensation, and provide for the printing of its documents, journals, debates and proceedings. The
Convention shall determine the rules of its proceedings, and be the judge of the elections, returns and
qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any
district or county by reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of
election to fill such vacancy shall he issued by the Governor, and such vacancy shall be filled by the
qualified electors of such district or county.

| Page 10 of 19
5. Florida (1887) - Art. XVII. Amendments.

Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or at any
special or extra- ordinary session thereof called for such purpose either in the governor's original call or any
amendment thereof, may propose the revision or amendment of any portion or portions of this Constitution.
Any such revision or amendment may relate to one subject or any number of subjects, but no amendment
shall consist of more than one revised article of the Constitution.

If the proposed revision or amendment is agreed to by three- fifths of the members elected to each
house, it shall be entered upon their respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two times, one publication to be made not
earlier than ten weeks and the other not later than six weeks, immediately preceding the election at
which the same is to be voted upon, and thereupon submitted to the electors of the State for approval or
rejection at the next general election, provided, however, that such revision or amendment may be
submitted for approval or rejection in a special election under the conditions described in and in the
manner provided by Section 3 of Article XVII of this Constitution. If a majority of the electors voting upon
the amendment adopt such amendment the same shall become a part of this Constitution.

Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the
members of both Houses, shall determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice of
said action shall be published weekly in one newspaper in every county in which a newspaper is
published, for three months preceding the next general election of Representatives, and in those
counties where no newspaper is published, notice shall be given by posting at the several polling
precincts in such counties for six weeks next preceding said election. The electors at said election may
vote for or against the revision in question. If a majority of the electors so voting be in favor of revision,
the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution,
said Convention to be held within six months after the passage of such law. The Convention shall consist
of a number equal to the membership of the House of Representatives, and shall be apportioned among
the several counties in the same manner as members of said House.

6. Idaho (1890) - Art. XX. Amendments.

Sec. 1: How amendments may be proposed. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the
members of each of the two houses, voting separately, such proposed amendment or amendments shall, with
the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit
such amendment or amendments to the electors of the state at the next general election, and cause the same
to be published without delay for at least six consecutive weeks, prior to said election, in not less that one
newspaper of general circulation published in each county; and if a majority of the electors shall ratify the
same, such amendment or amendments shall become a part of this Constitution.

Sec. 3. Revision or amendment by convention. Whenever two-thirds of the members elected to each
branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution,
they shall recommend to the electors to vote at the next general election, for or against a convention,
and if a majority of all the electors voting at said election shall have voted for a convention, the
legislature shall at the next session provide by law for calling the same; and such convention shall
consist of a number of members, not less than double the number of the most numerous branch of the

| Page 11 of 19
legislature.

7. Iowa (1857) - Art. X. Amendments to the Constitution.

Sec 3. Convention. At the general election to be held in the year one thousand eight hundred and
seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by law,
provide, the question, "Shall there be a Convention to revise the Constitution, and amend the same?"
shall be decided by the electors qualified to vote for members of the General Assembly; and in case a
majority of the electors so qualified, voting at such election, for and against such proposition, shall
decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall
provide by law for the election of delegates to such Convention.

8. Michigan (1909) - Art. XVII. Amendment and Revision.

Sec. 1. Amendment to constitution; proposal by legislature; submission to electors. Any amendment or

amendments to this constitution may be proposed in the senate or house of representatives. If the same shall
be agreed to by 2/3 of the members elected to each house, such amendment or amendments, shall be
entered on the journals, respectively, with the yeas and nays taken thereon; and the same shall be submitted
to the electors at the next spring or autumn election thereafter, as the legislature shall direct and if a majority
of the electors qualified to vote for members of the legislature voting thereon shall ratify and approve such
amendment or amendments, the same shall become part of the constitution.

Sec. 4. General revision: convention; procedure. At the Biennial Spring Election to be held in the year 1961, in
each sixteenth year thereafter and at such times as may be provided by laws, the question of a General
Revision of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature.
In case a majority of the Electors voting on the question shall decide in favor of a Convention for such
purpose, at an Election to be held not later than four months after the Proposal shall have been certified as
approved, the Electors of each House of Representatives District as then organized shall Elect One Delegate
for each State Representative to which the District is entitled and the Electors of each Senatorial District as
then organized shall Elect One Delegate for each State Senator to which the District is entitled. The
Delegates so elected shall convene at the Capital City on the First Tuesday in October next succeeding such
election, and shall continue their sessions until the business of the convention shall be completed. A majority
of the delegates elected shall constitute a quorum for the transaction of business . . . No proposed
constitution or amendment adopted by such convention shall be submitted to the electors for approval as
hereinafter provided unless by the assent of a majority of all the delegates elected to the convention, the yeas
and nays being entered on the journal. Any proposed constitution or amendments adopted by such
convention shall be submitted to the qualified electors in the manner provided by such convention on the first
Monday in April following the final adjournment of the convention; but, in case an interval of at least 90 days
shall not intervene between such final adjournment and the date of such election, then it shall be submitted at
the next general election. Upon the approval of such constitution or amendments by a majority of the qualified
electors voting thereon such constitution or amendments shall take effect on the first day of January following
the approval thereof.

9. Minnesota (1867) - Art. XIV. Amendments to the Constitution.

Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid. Whenever a
majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution, they may

| Page 12 of 19
propose such alterations or amendments, which proposed amendments shall be published with the laws
which have been passed at the same session, and said amendments shall be submitted to the people for
their approval or rejection at any general election, and if it shall appear, in a manner to be provided by law,
that a majority of all the electors voting at said election shall have voted for and ratified such alterations or
amendments, the same shall be valid to all intents and purposes as a part of this Constitution. If two or more
alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.

Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the
legislature shall think it necessary to call a convention to revise this Constitution, they shall recommend to the
electors to vote at the next general election for members of the legislature, for or against a convention; and if
a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at
their next session, provide by law for calling the same. The convention shall consist of as many members as
the House of Representatives, who shall be chosen in the same manner, and shall meet within three months
after their election for the purpose aforesaid.

Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to
revise this constitution shall submit any revision thereof by said convention to the people of the State of
Minnesota for their approval or rejection at the next general election held not less than 90 days after the
adoption of such revision, and, if it shall appear in the manner provided by law that three-fifths of all the
electors voting on the question shall have voted for and ratified such revision, the same shall constitute a
new constitution of the State of Minnesota. Without such submission and ratification, said revision shall
be of no force or effect Section 9 of Article IV of the Constitution shall not apply to election to the
convention.

10. Nevada (1864) - Art. 16. Amendments.

Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution may be
proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all the members
elected to each of the two houses, such proposed amendment or amendments shall be entered on their
respective journals, with the Yeas and Nays taken thereon, and referred to the Legislature then next to be
chosen, and shall be published for three months next preceding the time of making such choice. And if in the
Legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a
majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such
proposed amendment or amendments to the people, in such manner and at such time as the Legislature shall
prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the
electors qualified to vote for members of the Legislature voting thereon, such amendment or amendments
shall become a part of the Constitution.

Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of two-thirds
of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote
for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall
have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling
a Convention to be holden within six months after the passage of such law, and such Convention shall consist
of a number of Members not less than that of both branches of the Legislature.

In determining what is a majority of the electors voting at such election, reference shall be had to the highest
number of votes cast at such election for the candidates for any office or on any question.

| Page 13 of 19
11. New Hampshire (1784) -

Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of the
several towns and places in this state, in warning the first annual meetings for the choice of senators, after the
expiration of seven years from the adoption of this constitution, as amended, to insert expressly in the warrant
this purpose, among the others for the meeting, to wit, to take the sense of the qualified voters on the subject
of a revision of the constitution; and, the meeting being warned accordingly, and not otherwise, the moderator
shall take the sense of the qualified voters present as to the necessity of a revision; and a return of the
number of votes for and against such necessity, shall be made by the clerk sealed up, and directed to the
general court at their then next session; and if, it shall appear to the general court by such return, that the
sense of the people of the state has been taken, and that, in the opinion of the majority of the qualified voters
in the state, present and voting at said meetings, there is a necessity for a revision of the constitution, it shall
be the duty of the general court to call a convention for that purpose, otherwise the general court shall direct
the sense of the people to be taken, and then proceed in the manner before mentioned. The delegates to be
chosen in the same manner, and proportioned, as the representatives to the general court; provided that no
alterations shall be made in this constitution, before the same shall be laid before the towns and
unincorporated places, and approved by two thirds of the qualified voters present and voting on the subject.

12. Oklahoma (1907) - Art. XXIV. Constitutional Amendments.

Sec. 1. Amendments proposed by legislature; submission to vote. Any amendment or amendments to this
Constitution may he proposed in either branch of the Legislature, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such proposed amendment or amendments
shall, with the yeas and nays thereon, he entered in their journals and referred by the Secretary of State to
the people for their approval or rejection, at the next regular general election, except when the Legislature, by
a two-thirds vote of each house, shall order a special election for that purpose. If a majority of all the electors
voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this
Constitution.

If two or more amendments are proposed they shall be submitted in such manner that electors may vote for
or against them separately.

No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall
embrace more than one general subject and the voters shall vote separately for or against each proposal
submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by
articles, which embrace one general subject, each proposed article shall be deemed a single proposals or
proposition.

Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall be

called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or to
propose a new Constitution, unless the law providing for such convention shall first be approved by the
people on a referendum vote at a regular or special election, and any amendments, alterations, revisions,
or new Constitution, proposed by such convention, shall be submitted to the electors of the State at a
general or special election and be approved by a majority of the electors voting thereon, before the same
shall become effective Provided, That the question of such proposed convention shall be submitted to
the people at least once in every twenty years.

| Page 14 of 19
13. Oregon (1859) - Art. XVII. Amendments and Revisions.

Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all
the members elected to each of the two houses, such proposed amendment or amendments shall, with the
yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for
their approval or rejection, at the next regular general election, except when the legislative assembly shall
order a special election for that purpose. If a majority of the electors voting on any such amendment shall vote
in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such
amendment, or amendments, severally, whether proposed by the legislative assembly or by initiative petition,
shall be canvassed by the secretary of state in the presence of the governor, arid if it shall appear to the
governor that the majority of the votes cast at said election on said amendment, or amendments, severally,
are cast in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation, to declare the
said amendment, or amendments, severally, having received said majority of votes to have been adopted by
the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more amendments shall be submitted in the
manner aforesaid to the voters of this state at the same election, they shall be so submitted that each
amendment shall be voted on separately. No convention shall be called to amend or propose amendments to
this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be
approved by the people on a referendum vote at a regular general election. This article shall not be construed
to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor.

Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by
section 1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed
in either house of the Legislative Assembly and, if the proposed revision is agreed to by at least two- thirds of
all the members of each house, the proposed revision shall, with the yeas and nays thereon, be entered in
their journals and referred by the Secretary of State to the people for their approval or rejection,
notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide primary election, except
when the Legislative Assembly orders a special election for that purpose. A proposed revision may deal with
more than one subject and shall he voted upon as one question.

The votes for and against the proposed revision shall be canvassed by the Secretary of State in the
presence of the Governor and, if it appears to the Governor that the majority of the votes cast in the
election on the proposed revision are in favor of the proposed revision, he shall, promptly following the
canvass, declare, by his proclamation, that the proposed revision has received a majority of votes and
has been adopted by the people as the Constitution of the State of Oregon or as a part of the
Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the
Constitution or as a part of this Constitution from the date of such proclamation.

14. Utah (1896) - Art. 23. Amendments.

Sec. 1. Amendments; method of proposal and approval. Any amendment or amendments to this Constitution
may be proposed in either house of the Legislature, and if two-thirds of all the members elected to each of the
two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on their
respective journals with the yeas and nays taken thereon; and the Legislature shall cause the same to be
published in at least one newspaper in every county of the State, where a newspaper is published, for two
months immediately preceding the next general election, at which time the said amendment or amendments
shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors
voting thereon shall approve the same, such amendment or amendments shall become part of this

| Page 15 of 19
Constitution. If two or more amendments are proposed, they shall be so submitted as to enable the electors to
vote on each of them separately.

Sec. 2. Revision of the constitution by convention. Whenever two- thirds of the members, elected to each
branch of the Legislature, shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next general election, for or against a
convention, and, if a majority of all the electors, voting at such election, shall vote for a convention, The
Legislature, at its next session, shall provide by law for calling the same. The convention shall consist of
not less than the number of members in both branches of the Legislature.

15. Wyoming (1890) - Art. XX. Amendments.

Sec. 1. Procedure for amendments. Any amendment or amendments to this constitution may be proposed in
either branch of the legislature, and, if the same shall be agreed to by two-thirds of all the members of each of
the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, and cause the same to be published
without delay for at least twelve (12) consecutive weeks, prior to said election, in at least one newspaper of
general circulation, published in each county, and if a majority of the electors shall ratify the same, such
amendment or amendments shall become a part of this constitution.

Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such manner that
the electors shall vote for or against each of them separately.

Sec. 3. Constitutional convention; provision for. Whenever two- thirds of the members elected to each branch
of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or against a convention, and if a majority of
all the electors voting at such election shall have voted for a convention, the legislature shall at the next
session provide by law for calling the same; and such convention shall consist of a number of members, not
less than double that of the most numerous branch of the legislature.

Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it has
been submitted to and adopted by the people.

_______________________________
Footnotes

* First decision promulgated by First Division of the Supreme Court.

1. "When a house is completely demolished and another is erected on the same location, do you have a
changed, repaired and altered house, or do you have a new house? Some of the material contained in
the old house may be used again, some of the rooms may be constructed the same, but this does not
alter the fact that you have altogether another or a new house. We conclude that the instrument as
contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 1877; but on
the contrary it is a completely revised or new constitution." (Wheeler v. Board of Trustees, 37 S.E. 2d
| Page 16 of 19
322, 327).

"Every proposal which affects a change in a Constitution or adds or takes away from it is an
"amendment", while a "revision" implies a re-examination and statement of the Constitution, or
some part of it, in a corrected or improved form:" (Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E.
2d 49, 53 183 Va. 613).

"Amendment" and "revision" of constitution are separate procedures each having a substantial
field of application, not mere alternative procedures in the same field." (McFadden v. Jordan, 196
P. 2d 787, 797 32 Cal. 2d 330).

2. Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.

3. Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.

4. Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota, Nevada, New
Hampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to this opinion.

* Leon O. Ty, Seven Months of Martial Law, Daily Express.

* Panorama, May 6, 1973.

5. "A written constitution is susceptible of change in two ways: by revolution, which implies action not
pursuant to any provision of the constitution itself; and by revision, which implies action pursuant to some
procedural provision in the constitution. This distinction is concerned with the quare and not with the
quantum of change. It may be significant, however, that the alleged alteration does or does not purport to
affect the existence of the court itself. In the nature of things, a revolutionary charge does not admit of
judicial power as such to determine the fact of its occurrence. If the revolutionary constitution sets up a
court differently constituted from the pre-revolutionary court, neither tribunal is confronted with a
substantial problem, for neither can deny the act by which it was created without denying the fact of its
creation. Thus the Supreme Court in Luther v. Borden (supra) uses language substantially parallel with
what has been indicated above as the logical explanation of the Duke of York's case. For the court to
give serious judicial consideration to such a question would present 'the singular spectacle of a court
sitting a a court to declare that we are not a court.' (Brittle v. People, 2 Neb. 198, 214 [1873].) And even if
the alleged new constitution purports to leave intact the former court and to permit its work to go on
| Page 17 of 19
without hiatus, the decision which the judges must make is still an individual choice to be made by them
as a matter of practical politics. Two commissions are being held out to them, and if they will act as a
court they must assert under which commission they are acting. To put the matter in another way, it must
be true that in the first case above of two constitutions purporting to establish two different courts, the
men who were judges under the old regime and the men who are called to be judges under the new
have each to decide as individuals what they are to do; and it may be that they choose at grave peril with
the factional outcome still uncertain. And, although it is not equally obvious, the situation is logically
identical where the same men are nominated to constitute the court under both the old and the new
constitution, at a time when the alleged change is occurring if it is peaceably and against a placid
popular background. Men under such circumstances may write most praiseworthily upon principles of
statesmanship, upon sovereignty and its nature and modes of action, and upon the bases of government,
to justify their choice between the two commissions. They can assert their choice in the course of
purported judicial action. But they cannot decide as a court, for the decision, once made, by a retroactive
hypothesis excludes any assumption of controversiality in the premises."

"Where the alleged change occurs not through revolutionary measures but through what has been
called revision, these logical difficulties disappear in one aspect, but become far more
embarrassing in another. Where the alteration purports to be made along the lines of a procedural
method laid down in the old constitution, there is a standard which the court can apply and, by so
doing, it can perceive judicially whether or not the change has followed the prescribed lines. If it
has, there is no difficulty in pronouncing as a matter of law its accomplishment. Only one exception
is possible, namely, the case where the alteration purports at once to abolish the court or to
depose its personnel. Then, although there would be a question of law to be decided, it may be
wondered who there is to decide it. Suppose, however, the mode of change has failed in some
way to conform to a directory provision of the amending clause of the constitution; is the court to
declare the attempt at alteration unsuccessful? It would seem as a matter of law that it must do so;
and yet what is the situation if the proponents of the change say, 'It is true that this measure failed
under the amending clause, but as a revolutionary measure it was a success and we insist upon
its recognition.' Clearly the members of the court are now more badly than ever entangled in the
logical difficulties which attend a purported judicial pronouncement upon the achievement or
non-achievement of revolutionary change. For the temptation will be great to treat the matter as a
legal question. The times are peaceful. The changes probably do no affect the tenure of many
offices of any branch of the government. The popular inertia is likely to allow the court successfully
to assume the question to be one of law. The path of fallacy is not too strikingly fallacious to the
uncritical observer. It may lead to just results. The judges' personal inclinations will be to show
deference to the expression of popular sentiment which has been given. And yet, if they declare
the change in force, they are truly making a personal declaration that they believe the change to
be the directly expressed will of the sovereign, which will they assert to be law, but the fact of
existence of which will - and this is the real decision is not ascertainable in the given case by any
legal means. It is submitted that this is true, and that the conclusions offered in the discussion of
revolutionary change are true, also, whether the quantum of change involved be vast or almost
negligible."

"The net result of the preceding discussion is this: that in almost the whole field of problems which
the Duke of York's case and the American constitutional amendment cases present, the court as a
court is precluded from passing upon the fact of change by a logical difficulty which is not to be
surmounted. It follows that there is no room for considering whether the court ought graciously and
| Page 18 of 19
 deferentially to look to the executive or legislative for a decision that a change has or has not taken
place. In such a context, such a question becomes wholly moot except for this consideration, that,
when the judges as individuals or as a body of individuals come to decide which king or which
constitution they will support and assert to represent, it may often be good judgment for them to
follow the lead of the men who as a practical matter are likely to be looked to by the people as
more representative of themselves and conversely are likely to be more directly in touch with
popular sentiment. If, however, the judges hold too strong views of their own to he able to take this
course, they may follow their own leads at their own hazards. No question of law is involved."
(Political Questions, 38 Harvard Law Review [1924-25], pp. 305-309.)

6 & 7 Ibid. pp. 301, 305.

@ The inclusion in the Appendix of provisions for Amendment and Revision in State Constitutions,
adopted after 1935, is only to stress the fact that the distinction between Amendment and Revision of
Constitution, which existed at the time of the adoption of the 1935 Constitution, has continued up to the
present.

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