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2-The Working of the Courts, Bryce, J., American Commonwealth, I, 261-76.
3-Relation of the Judiciary to the Political Departments of the Government, Baldwin, S. E., The American Judiciary, 27-53.
4 The United States Supreme Court the Absolute Power, Pierce, F., Federal Usurpation, 197-237.
5-The Power to Declare Statutes Unconstitutional, Elliot, C. B., Political Science Quarterly, V, 224–58.
6-The Great Usurpation, Trickett, Wm., American Law Review, XL, 356-76.
53. THE DEVELOPMENT OF STATE CONSTITUTIONS.
During the century and a quarter since the States declared their independence and formed governments of their own choice these governments have been subject to constant change until to-day they present a form quite different from that in which they were originally cast. This development has been almost uniformly in the direction of enlarging the scope of the governor's authority and of limiting and checking that of the legislature. In the following selection Mr. James Bryce sketches the history of State Constitutions down to 1890:1
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 not of his own choosing. He has not (except in Massa
1 Selections 53, 55, 72 and 82 are reprinted from Bryce's American Commonwealth, by special permission of MacMillan and Company.
chusetts) 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 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, such as the supremacy in politics of the generation who had been boys during the Revolutionary War, but to the influence upon the generation which had then come to manhood of French republican ideas, an influence which declined after 1805 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 (in the North and West) that constitutions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given 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, 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 fettering its action by complicated restrictions. It may seem that to take powers away from the legislature is to give them to the people, and 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 delay. Such provisions are therefore conservative in their results, and are really checks imposed by the citizens upon themselves.
A few more observations on what the Constitutions disclose are needed to complete this brief sketch of the most instructive sources for the history of popular government which our century has produced-documents whose clauses, while they attempt to solve the latest problems of democratic commonwealths, often recall the earliest efforts of our English forefathers to restrain the excesses of mediæval tyranny.
The Constitutions witness to a singular distrust by the peo
ple of its own agents and officers, not only of the legislatures but also of local authorities, as well rural as urban, whose powers of borrowing or undertaking public works are strictly limited. Even the judges are in some States restrained in their authority to commit for contempt of court, and three very recent constitutions contain severe provisions against abuse of his veto and appointing power by the governor, and against bribery offered to or by him.
They witness also to a jealousy of the Federal government. By most constitutions a Federal official is made incapable, not only of State office, but of being a member of a State legislature. These prohibitions are almost the only references to the National government to be found in the State constitutions, which so far as their terms go might belong to independent communities. They usually talk of corporations belonging to other States as "foreign," and sometimes try to impose special burdens on them.
They show a wholesome anxiety to protect and safeguard private property in every way. The people's consciousness of sovereignty has not used the opportunity which the enactment of a constitution gives to override private rights; there is rather a desire to secure such rights from any encroachment by the legislature; witness the frequent provisions against the taking of property without due compensation, and against the passing of private or personal statutes which could unfairly affect individuals. The only exceptions to this rule are to be found in the case of anything approaching a monopoly, and in the case of wealthy corporations. But the "monopolist" is regarded as the enemy of the ordinary citizen, whom he oppresses; and the corporation—it is usually corporations that are monopolists-is deemed not a private person at all, but a sort of irresponsible tyrant whose resources enable him to overreach the law. Corporations are singled out for special taxation. Labour laws are enacted to apply to them only. A remarkable instance of this hostility to monopolies is to be found in the Constitution of Illinois of 1870, with its provisions anent grain elevators, warehouses, and railroads.