er de laur. at eat into the docuFurthermore, the numerous

do. y de snem minority of four endent &ular to the contention

decisions are not mere

ter and dirt a the Constitution to specific bottens to the venerable fabric 40. Cracked. This, of course, is cona tew moms wil make clear what CNICA, vity intention of adverse Sureme Coumes constitutional law

e to Test the demands of new circumstances, the pinen i the Court as to what ought to be

The use of Chisholm r. Georgia, menThe Court 2006 isdiction over a suit That it was not the intention of be time of the race to confer such jurisletées by the Zenera protest which went up against e fully with wood 14 Amendment was provided. Halton in The Federals had expressed his wet that no sulla pover was Even by the Constitution, and the Peter al principies of 4# 2 to this time seem to have been contrary to the ring of the Court: but the Court jesting te rince the Con fit, won a crowdy mtoa mstrument, assumed jan option over the sub igunst Geirra. A more nocle Case was that of Marbury a. Madison, iʼn viith the Court decided for the brit time that it had sower to tecure nvilÍ KITILA wich it deemed ovatrary to the CrestrIDOL Whether the t....jority in the ova ventila mtended to bestow ich hath prerogltive in the recera, tribunal is a matter of came troversy. Certain it is that some of the members, DocLIT Hinton, ascried such a over to the Court. but no express warrant was cow eyed by the document itseif, and there is some reason for holding that such might not have been the general intention of those who "ated the nstrument. Later the Court extended the sia de formadong any state to pass a law impairing the obligation of contract to cover even agreements made by

Readings, p. 32.

the states themselves in the form of charters and concessions, a ruling which, however expedient from the standpoint of the protection of private rights, certainly widened the meaning of the term "contract," as generally understood at the time.' To cite a more recent example: until the acquisition of our insular dependencies, an achievement as far beyond the range of the vision of the convention of 1787 as any imaginable, the Court had uniformly ruled that the provisions safeguarding individual liberty, laid down in the first ten amendments, restricted the federal authorities everywhere, in the government of territories as well as in the districts organized into states; but when it became apparent that such practices of Anglo-Saxon peoples as indictment and trial by jury were not applicable to peoples in other stages of culture and with diverse historical antecedents, the Court, by a process more subtle than logical, found a way of freeing the administration of the island dependencies from some limitations that had hitherto applied in the government of territories.2

The pages that follow describing the organization and operation of our system of government, federal and state, are in a large part but a commentary on the ways in which the Constitution"the solemn determination of the people enacting a fundamental law" - has been transformed in the hands of those who from generation to generation have exercised political power. Over and over the plain record of political practices and official operations will bear eloquent testimony to the truth of the measured summary by Judge Cooley so often quoted: "We may think that we have the Constitution all before us; but for practical purposes the Constitution is that which the government in its several departments and the people in the performance of their duties as citizens, recognize and respect as such; and nothing else is. . . . Cervantes says: 'Every one is the son of his own works.' This is more emphatically true of an instrument of government than it can possibly be of a natural person. What it takes to itself, though at first unwarrantable, helps to make it over into a new instrument of government, and it represents at last the acts done under it."

1 See below, chap. xxii.

2

Readings, p. 375

CHAPTER V

THE EVOLUTION OF STATE CONSTITUTIONS

THE fasty with whin our political system may be divided in to the state and federal branches naturally leads to the separation of them for the purpose of convenient treatment; but the student should never lose sight of the fact that, after all, our poptical system is a unit because the operations of both branches interlock at many points, and the developments of each affect the letter and spirit of the other. The framers of the federal Constitution, for example, did not contemplate the adoption of general manhood siffrage or the direct election of the President, and yet state action and party practice have accomplished this. It surely was not the intention of the states which ratibed the Constitution that the outcome was to be the reduction of each commonwealth to the position of little more than a local goverament through the increase of federal power; and yet such has been the case. It was not dreamed that national politics would overshadow state politics; but the growth of huge national party organizations in connection with the operations of the federal government has made the state a tight-working oog in a national mechanism. A compiete survey of American constitutional evolution must, therefore, take into account the tendencies in the evolution of state institutions.

An examination of the principal features of the early state constitutions reveals certain striking characteristics. They show, in the first place, an unlimited faith in the legislature, because they contain practically no limitations on the powers and procedure of that body. At the same time, they reveal a distrust of the executive by providing in many instances that the governor shall be elected by the legislature, and under ail circumstances restricted to the exercise of a very limited authority.

The constit tons of the American states are to be found in Thorne, The Federal and State Contiikatons, pubashed by the teatri government.

Following colonial precedents, they impose property qualifications, and in many cases religious tests as well, upon voters and office-holders. They, furthermore, provide that the state executive officers, and especially the judges, shall be appointed, not elected in the modern fashion. Finally, the eighteenth-century constitutions are brief and simple in contrast to the bulky and complex documents of our time. The fundamental law of New Jersey adopted in 1776 fills only about five printed pages. The constitution of New York, drafted in 1777, including a reprint of the Declaration of Independence, covers less than sixteen printed pages, while the last constitution of New York, drafted in 1894, spreads over forty-three pages. The Virginia constitution of 1776, leaving out of account some passages from the Declaration of Independence, fills only about five and a half printed pages; the last Virginia constitution (1902) is ten times as large. The constitution-makers of Louisiana in 1898 required forty-five thousand words to write the fundamental law of that commonwealth; and the constitution of Oklahoma, admitted to the Union in 1907, would fill about one hundred and fifty printed pages of the style of this volume.

The Rise of Political Democracy

At the outset of an inquiry into the first state constitutions, one is struck by the fact that the Fathers, notwithstanding the theoretical assertion of equality in the Declaration of Independence, did not believe that the right to vote and hold office should be freely given to all men regardless of the amount of property they held or the religious opinions they entertained.' In nearly every state, the suffrage was limited, by the constitution or laws, to property-owners, generally freeholders or taxpayers, and in some of them religious tests were imposed in addition. In New York the constitution of 1777, adopted "in the name and by the authority of the good people" of the state, provided that "every male inhabitant of full age, who shall have personally resided within one of the counties of this state for six months immediately preceding the day of election, shall at such election be entitled to vote for representatives of the said county in assembly; if, during the time aforesaid, he shall

1
1 Readings, p. 72.