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 thirteen Constitutions enacted between 1776 and 1887, to which many more have since been added.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

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 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 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 nineteenth 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 democ

find matter full of instruction. Among the former I may especially refer 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 Lord Shaftesbury. They were found unsuitable, were only partially put in force, and were abrogated by the proprietors in 1693, but they are scarcely less interesting to the student of history on that account.

1 In New York a veto on Acts of the legislature was by the first Constitution vested in the Governor and judges of the highest State court, acting together.

2 The wide powers of these early legislatures are witnessed to by the fear which prudent statesmen entertained of their action. Madison said, in the Constitutional 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."

ratization of all institutions, a democratization due not only to causes native to American soil, such as the rise in the West of new agricultural communities where all the settlers were practically equal, the supremacy in politics of the generation who had, as boys during the Revolutionary War, been permeated by the phrases of 1776, but also to the influence of French republican ideas, an influence which began to decline after 1805 and ended with 1851, since which time French examples and ideas have counted for little or nothing. 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,1 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 as against the legislative. The governor had begun to receive in the second period, and has now in every State but one, 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 Constitu

1 Though Massachusetts forgot till 1892 to abolish the property qualification for her Governorship.

tions 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 is apt to yield to any popular clamour, however transient, while direct legislation by the people involves delay. Such provisions may therefore prove to be conservative in their results, if not in their intention.

This process of development, which first exalted and then depressed the legislature, which extended the direct interference of the people, which 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 may make the constitutions of forty years hence different from those of to-day. To conjecture the nature of these forces we must examine a little further the existing constitutions of the States, especially the later among them; and more particularly that remarkable group enacted in 1889 by the six commonwealths which were admitted to the Union in 1889 and 1890, as well as the constitution which Oklahoma gave herself in 1907. We must also 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 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 virtually new communities like those of the West. There is still, however, a strong contrast between the New England States, to which for this purpose we may add New Jersey, whose present constitutions all date from the period between

1780 and 1844, and the Southern and Western States, nearly all of whose constitutions are subsequent to that year. In these older States the power of the executive is generally greater. The judges are frequently named by the governor, and not elected by the people. The electoral districts are not always equal. The constitutions are not so minute, and therefore the need of recurring to the people to change them arises less frequently.

Taking the newer, and especially the Western and Southern Constitutions, and remembering that each is the work of an absolutely independent body, which (subject to the Federal Constitution) can organize its government and shape its law in any way it pleases, so as to suit its peculiar conditions and reflect the character of its population, one is surprised to find how similar these newer instruments are. There is endless variety in details, but a singular agreement in essentials. The influences at work, the tendencies which the constitutions framed since 1865 reveal, are evidently the same over the whole Union. What are the chief of those tendencies? One is for the constitutions to grow longer. This is an absolutely universal rule. Virginia, for instance, put her first constitution, that of 1776, into four closely printed quarto pages, that is, into about three thousand two hundred words. In 1830, she needed seven pages; in 1870, twenty-two pages, or seventeen thousand words; her latest has (1902) thirty-five thousand words. Texas has doubled the length of her constitution from sixteen quarto pages in 1845 to thirty-four in 1876. Pennsylvania was content in 1776 with a document of eight pages, which for those times was a long one; she now requires twenty-three. The constitution of Illinois filled ten pages in 1818; in 1870 it had swollen to twenty-five. These are fair examples, but the extremes are marked by the constitution of New Hampshire of 1776, which was of about six hundred words (not reckoning the preamble), and the constitutions of Missouri of 1875 and of South Dakota of 1889, which have each more than twentysix thousand words. Even these were surpassed by Oklahoma, whose constitution of 1907 exceeded thirty-three thousand words, and by Louisiana, whose constitution of 1898 has fortyfive thousand. The new constitutions are longer, not only because new topics are taken up and dealt with, but because the old topics are handled in far greater detail. Such matters as education, ordinary private law, railroads, State and