national government (save in certain points already specified), it is also the fundamental organic law of the State itself. The State exists as a commonwealth by virtue of its Constitution, and all State authorities, legislative, executive, and judicial, are the creatures of, and subject to, the State Constitution. Just as the President and Congress are placed beneath the Federal Constitution, so the governor and Houses of a State are subject to its Constitution, and any act of theirs done either in contravention of its provisions, or in excess of the powers it confers on them, is absolutely void. All that has been said in preceding chapters regarding the functions of the courts of law where an act of Congress is alleged to be inconsistent with the Federal Constitution, applies equally where a statute passed by a State legislature is alleged to transgress the Constitution of the State, and of course such validity may be contested in any court, whether a State court or a Federal court, because the question is an ordinary question of law, and is to be solved by determining whether or no a law of inferior authority is inconsistent with a law of superior authority. Whenever in any legal proceeding before any tribunal, either party relies on a State statute, and the other party alleges that this statute is ultra vires of the State legislature, and therefore void, the tribunal must determine the question just as it would determine whether a by-law made by a municipal council or a railway company was in excess of the law-making power which the municipality or the company had received from the higher authority which incorporated it and gave it such legislative power as it possesses. But although Federal courts are fully competent to entertain a question arising on the construction. of a State Constitution, their practice is to follow the precedents set by any decision of a court of the State in question, just as they would follow the decision of an English court in determining a point of purely English law. They hold not only that each State must be assumed to know its own law better than a stranger can, but also that the supreme court of a State is the authorized exponent of the mind of the people who enacted its Constitution.

A State Constitution is really nothing but a law made

directly by the people voting at the polls upon a draft submitted to them. The people of a State when they so vote act as a primary and constituent assembly, just as if they were all summoned to meet in one place like the folkmoots of our Teutonic forefathers. It is only their numbers that prevent them from so meeting in one place, and to oblige the vote to be taken at a variety of polling places. Hence the enactment of a Constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republics of antiquity, and has lasted till now in some of the cantons of Switzerland.

State Constitutions have less capacity for development, whether by interpretation or by usage, than the Constitution of the United States: first, because they are more easily, and therefore more frequently, amended or recast; second, because they are far longer, and go into much more minute detail. The Federal Constitution is so brief and general that custom must fill up what it has left untouched, and judicial construction evolve the application of its terms to cases they do not expressly deal with. But the later State Constitutions are so full and precise that they need little in the way of expansive construction, and leave comparatively little room for the action of custom.

The rules of interpretation are in the main the same as those applied to the Federal Constitution. One important difference must, however, be noted, springing from the different character of the two governments. The national government is an artificial creation, with no powers except those conferred by the instrument which created it. A State government is a natural growth, which prima facie possesses all the powers incident to any government whatever. Hence, if the question arises whether a State legislature can pass a law on a given subject, the presumption is that it can do so: and positive grounds must be adduced to prove that it cannot. It may be restrained by some inhibition either in the Federal Constitution, or in the Constitution of its own State. But such inhibition must be affirmatively shown to have been imposed, or, to put the same point in other words, a State Constitution is held

to be, not a document conferring defined and specified powers on the legislature, but one regulating and limiting that general authority which the representatives of the people enjoy ipso jure by their organization into a legislative body.

The executive and legislative departments of a State government have of course the right and duty of acting in the first instance on their view of the meaning of the Constitution. But the ultimate expounder of that meaning is the judiciary; and when the courts of a State have solemnly declared the true construction of any provision of the Constitution, all persons are bound to regulate their conduct accordingly. This authority of the American courts is not in the nature of a political or discretionary power vested in them; it is a legitimate and necessary consequence of the existence of a fundamental law superior to any statute which the legislature may enact, or to any right which a governor may conceive himself to possess. To quote the words of an American decision:

"In exercising this high authority the judges claim no judicial supremacy; they are only the administrators of the public will. If an Act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the Act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law."

It is a well-established rule that the judges will always lean in favor of the validity of a legislative Act; that if there be a reasonable doubt as to the constitutionality of a statute they will solve that doubt in favor of the statute; that where the legislature has been left to a discretion they will assume the discretion to have been wisely exercised; that where the construction of a statute is doubtful, they will adopt such construction as will harmonize with the Constitution, and enable it to take effect. So it has been well observed that a man might with perfect consistency argue as a member of a legislature against a bill on the ground that it is unconstitutional, and after having been appointed a judge, might in his judicial capacity sustain its constitutionality. Judges must not inquire into the motives of the legislature, nor refuse to apply an Act because

they may suspect that it was obtained by fraud or corruption, still less because they hold it to be opposed to justice and sound policy. "But when a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it; and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto, is true also as to any part of an Act which is found to be unconstitutional, and which consequently is to be regarded as having never at any time been possessed of legal force."

CHAPTER III

THE DEVELOPMENT OF STATE CONSTITUTIONS

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 downward, 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 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. Such provisions for the maintenance of religious institutions by the State as had continued to exist are now swept away. The principle prevails 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 color, 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.