CHAPTER XXXVIII

THE DEVELOPMENT OF STATE CONSTITUTIONS

It was observed in last chapter that the State Constitutions furnish invaluable materials for history. Their interest is all the greater, because the succession of Constitutions and amendments to Constitutions from 1776 till to-day enables the annals of legislation and political sentiment to be read in these documents more easily and succinctly than in any similar series of laws in any other country. They are a mine of instruction for the natural history of democratic communities. Their fulness and minuteness make them, so to speak, more pictorial than the Federal Constitution. They tell us more about the actual methods and conduct of the government than it does. If we had similar materials concerning the history of as many Greek republics during the ages of Themistocles and Pericles, we could rewrite the history of Greece. Some things, however, even these elaborately minute documents do not tell us. No one could gather from them what were the modes of doing business in the State legislatures, and how great a part the system of committees plays there. No one could learn what manner of men constitute those bodies and determine their character. No one would know that the whole machinery is worked by a restlessly active party

organization. Nevertheless they are so instructive as records of past movements, and as an index to the present tendencies of American democracy, that I heartily regret that the space at my disposal permits me to make only a sparing use of the materials which I gathered during many months spent in studying the one hundred and five Constitutions enacted since the Declaration of Independence.1

Three periods may be distinguished in the development of State Governments as set forth in the Constitutions, each period marked by an increase in the length and minuteness of those instruments.

The first period covers about thirty years from 1776 downwards, and includes the earlier Constitutions of the original thirteen States, as well as of Kentucky, Vermont, Tennessee, and Ohio.

Most of these Constitutions were framed under the impressions of the Revolutionary War. They manifest a dread of executive power and of military power, together with a disposition to leave everything to the legislature, as being the authority directly springing from the people. The election of a State governor is in most States vested in the legislature. He is nominally assisted, but in reality checked, by a council

1 I venture again to commend the study of these constitutions to the philosophic inquirer into what may be called the science of comparative politics. Both among the pre-Revolutionary charters and the State constitutions he will find matter full of instruction. Among the former I may refer especially to the Frame of Government of Pennsylvania, 1682 and 1683, and to the Fundamental Constitutions of Carolina of 1669. These last were framed by John Locke, and revised by the first Lond Shaftesbury. They were found unsuitable, were only partially put in force, and were abrogated by the proprietors in 1693, but they are none the less interesting to the student of history on that account.

2 See the remarkable passage in the Federalist, Nos. xlvi. and xlvii., which by examining the structure of the State Governments, shows the predominance of the legislature.

not of his own choosing. He has not (except in Massachusetts) a veto on the Acts of the legislature. He has not, like the royal governors of colonial days, the right of adjourning or dissolving it. The idea of giving S power to the people directly has scarcely appeared, because the legislature is conceived as the natural and necessary organ of popular government, much as the House of Commons is in England. And hence many of these early Constitutions consist of little beyond an elaborate Bill of Rights and a comparatively simple outline of a frame of government, establishing a representative legislature,' with a few executive officers and courts of justice carefully separated therefrom.

The second period covers the first half of the present century down to the time when the intensity of the party struggles over slavery (1850-60) interrupted to some extent the natural processes of State development.

It is

a period of the democratization of all institutions, a democratization due not only to causes native to American soil, but to the influence upon the generation which had then come to manhood of French republican ideas, an influence which declined after 1815 and ended with 1851, since which time French examples and ideas have counted for very little. Such provisions for

the

maintenance of religious institutions by the State as had continued to exist are now swept away. The principle becomes established that constitutions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given

1 The wide powers of these early legislatures are witnessed to by the fear which prudent statesmen entertained of their action. Madison said, in the Philadelphia Convention of 1787, "Experience proves a tendency in our governments to throw all power into the legislative vortex. The executives of the States are little more than ciphers; the legislatures are omnipotent." How they might abuse this power the case of Rhode Island showed.

to the people. Property qualifications are abolished, and a suffrage practically universal, except that it often excludes free persons of colour, is introduced. Even the judges are not spared. Many Constitutions shorten their term of office, and direct them to be chosen by popular vote. The State has emerged from the English conception of a community acting through a ruling legislature, for the legislature begins to be regarded as being only a body of agents exercising delegated and restricted powers, and obliged to recur to the sovereign people (by asking for a constitutional amendment) when it seeks to extend these powers in any particular direction. The increasing length of the constitutions during this half century shows how the range of the popular vote has extended, for these documents now contain a mass of ordinary law on matters which in the early days would have been left to the legislatures.

In the third period, which begins from about the time of the Civil War, a slight reaction may be discerned, not against popular sovereignty, which is stronger than ever, but in the tendency to strengthen the executive. and judicial departments. The governor had begun to receive in the second period, and has now in every State but four, a veto on the acts of the legislature. His tenure of office has been generally lengthened; the restrictions on his re-eligibility generally removed. In many States the judges have been granted larger salaries, and their terms of office lengthened. Some constitutions have even transferred judicial appointments from the vote of the people to the executive. But the most notable change of all has been the narrowing of the competence of the legislature, and the tying up of its action by a variety of complicated restrictions. It may seem that to take powers away from the legislature is to give them to the

people, and is therefore another step towards pure democracy. But in America this is not so, because a legislature always yields to any popular clamour, however transient, while direct legislation by the people involves some delay. Such provisions are therefore conservative in their results, and are really checks imposed by the citizens upon themselves.

This process of development, which has first exalted and then depressed the legislature, which has extended the direct interference of the people, which has changed the Constitution itself from a short into a long, a simple into a highly complex document, has of course not yet ended. Forces are already at work which will make the constitutions of forty years hence different from those of today. To conjecture the nature of these forces we must examine a little further the existing constitutions of the States, and especially the later among them; and must distinguish between different types of constitution, corresponding to the different parts of the Union in which the States that have framed them are situate.

Three types were formerly distinguishable, the old colonial type, best seen in New England and the older middle States, the Southern or Slave State type (in which the influence of the first Constitution of Virginia was noticeable), and the new or Western type. At present these distinctions are less marked. All the Southern States except Kentucky (which never passed an ordinance of secession) have given themselves new constitutions since the war; and the differences between these and the new constitutions of the North-Western and Pacific States are not salient. This is because the economic and social changes produced by the War of Secession and abolition of slavery broke to pieces the old social conditions, and made these Southern States