THE PROBLEM OF ADEQUATE LEGISLATIVE POWERS UNDER STATE CONSTITUTIONS

IN

ERNST FREUND

Professor of Jurisprudence and Public Law, University of Chicago

N addition to the many specific questions that agitate a constitutional convention, there must always be in the background the general problem how to construct the entire framework of the instrument in such manner that it may best serve as the paramount law of the state. The situation. confronting the convention in this respect may be briefly stated as follows.

State constitutions have grown vastly in bulk, and the increase is shared equally by the provisions relating to organization and those relating to governmental policy and action. With regard to the former it has been chiefly an elaboration of detail, with regard to the latter an enlargement by the introduction of new constitutional aims and functions. In the old constitution, stress was laid on governmental inaction; in the new it is on positive policies and measures.

Distrust of all public power was the keynote of the bill of rights; distrust of the legislature and dissatisfaction with its past performances the mainspring of many, if not most, of the subsequent limitations and prohibitions.

At the same time, in an increasing degree, the constitution. was made the means of giving the most direct and forcible expression to the popular will. The desire to make a temporarily dominant policy secure against reversal by shifting political majorities was sometimes a factor in this development, but not the only one, for policies were expressed in constitutional clauses which had become fixed principles of legislation, removed from the strife of partisan politics, as the standing provisions relating to banks and railroads show. There was little danger that in these matters the legislature would thwart the will of the people, and as a matter of fact legislation readily

and effectually supported and carried out the constitutional policies.

In the course of time the habit of giving constitutional expression to the popular will produced inconveniences which could hardly have been foreseen at the beginning in their entirety. If the object of the constitution were merely to curb and check legislation, the piling-up of constitutional provisions would serve the purpose admirably. There are some purely prohibitive and negative clauses which thus fulfil their function. and operate without trouble or difficulty.

It is otherwise where the constitutional provision is not selfexecuting. The clauses controlling legislative procedure require of course legislative application; so do all enabling and directing provisions; the articles organizing the departments of government are rarely complete without supplementary legislation; and even restrictive clauses are often only imperfectly effectual without administrative statutes to enforce them. It is often said that the modern constitution usurps the function of a statute; but the truth is that the most prolix constitution is, as a piece of legislation, fragmentary and dependent. No method has yet been discovered, or is likely to be discovered, which will make it possible to dispense with statutory legislation as the only adequate channel of expressing the popular will.

From this arises a new problem: the constitution requires statutory regulation; yet the constitutional status of the matter to be regulated withdraws it from the fulness of legislative power in respects unforeseeable by the most careful framer of the provision. Almost every word of the constitution, though it purport to be enabling, is apt to operate in some way as a limitation upon legislative action. The statute is subordinate to the constitution, and the courts annul the statute which is not in accord with the paramount law.

Constitutional supremacy is meant to be the domination of the legislature by the people; in effect it must mean the domination of the legislature by the courts. While it is true that the court applies only the checks which it finds in the constitution, it is also true that it is the court that finds the checks.

In making a constitution, the people, so far from speaking directly, interpose between themselves and their will two organs instead of one.

It must be doubted whether the situation is fully realized. The movement for the recall of judicial decisions is directed only against the possible misinterpretation of the most general clauses of the constitution, in applying which the judiciary is as likely to be the guardian of right and justice as to be the thwarter of the popular will. It does not touch the numerous cases in which the popular will is defeated by a strict construction of specific clauses. The bitter hostility with which the recall of decisions is opposed and the slight headway which the movement has made, also show that the people are reluctant to risk so radical and imperfectly thought out an experiment with a fundamental feature of our institutions.

Yet since a purely negative attitude toward a widespread political demand is generally futile, it behooves us to inquire whether the present relation between constitution and legislation is not capable of readjustment so as to remove conceded shortcomings and grievances.

What is needed is some modus vivendi between the various constitutional organs, a plan that will establish constitutional supremacy without defeating the popular will through constitutional technicalities, that will check the abuse and careless use of legislative power without destroying its fullest liberty for useful and adequate service, that will preserve the benefit of judicial control without reducing constitutional principles to the plane of statutory rules: that will, in other words, set the various organs free to perform their functions beneficially and not obstructively, and preserve the essence of constitutional checks without hampering the work of legislation by unessential and unintended accidents.

This result can be accomplished if a constitutional convention can be induced to do the following things:

1. Qualify or remove limitations that experience has proved to be of slight value or unenforceable.

2. Attempt to secure superior methods of preparing and enacting legislation.

3. Minimize the effect of limitations that are due to inadvertence and not to deliberate policy.

4. Emancipate the legislature from supposedly inherent restraints placed upon it by a judicial theory of the exclusiveness, the inalienability and the non-delegability of constitutional powers.

PROCESS OF LEGISLATION

1. The Share of the Executive in Legislation

It is one of the characteristic features of American legislation that the multiform structure of the legislature is in nowise utilized for functional differentiation. In most European systems the two chambers represent different political elements of the state, and the executive has practically the monopoly of initiating measures. The government is thus a petitioner, parliament a critic and the final judge. The reciprocal interaction of different organs of the body politic creates all around a hightened sense of responsibility for legislation.

There is no prospect of forcing by constitutional enactment a change of so delicate a nature as a transformation of the constitutional relations between the organs of legislation; such a change can be only a matter of slow and spontaneous growth. But it may not be impossible to invite reforms which look in the direction of a better utilization of the share of the executive in legislation, since his coöperation is already provided for, and the clear tendency of the time is to make him a more powerful factor in shaping both legislative policies and specific measures. Three relatively simple changes are suggested for this purpose:

(1) Let the constitution give the governor the right to introduce bills. He can now readily find members to bring in bills known to emanate from him and spoken of as administration bills; they have been officially recognized as such by house rules; but their status would gain if the governor could appear formally as their sponsor. The practice would not

1

1 See as to Illinois a note in American Political Science Review, vol. vii, p. 239.

be revolutionary, since it is only a slight step beyond the existing power to recommend by message; and it would not be necessary to give governor's bills a preferred status. For a precedent reference may be made to the constitution of Alabama, which provides (art. 4 sec. 70) that the governor, auditor and attorney general shall before each regular session of the legislature prepare a general revenue bill, to be submitted to the legislature for its information, to be used or dealt with by the house of representatives as it may elect.

(2) In signing bills the governor frequently exercises a scrutiny of a technical character, discovering and pointing out legal and administrative defects. The merit of such criticism. is rarely questioned. In some states the opportunity for it is unduly restrained by the short time allowed the governor for his action. What counts particularly is the time after adjournment, when the number of bills submitted simultaneously is greatest. In some states, however, he has thirty days, in others until the next meeting of the legislature, or practically unlimited time. These provisions ought to be made general.

(3) In close connection with the last suggestion, the constitution should facilitate a speedy method of accepting suggestions for amendment made by the governor. At present there is only the alternative of supporting the veto or overriding it, of passing an imperfect bill or dropping it and starting the process of enactment de novo. There should be a constitutional provision permitting the bill as amended in accordance with the governor's suggestions to be put to the vote of the houses. Such a provision exists in Alabama (art. v sec. 125), and also with regard to ordinances in Chicago (Act of 1905). A constitutional provision to this effect would probably encounter no opposition. It is almost a necessary counterpart to another provision sometimes advocated, which however has been adopted only in Washington, namely, that the governor may veto one particular section of a bill. The Alabama provision, indeed, makes the latter provision superfluous.