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elect their treasurer,” exclaimed Mr. Hanks in the Kentucky convention of 1890, when it was proposed to give the governor the power to appoint the officer; "I know full well that they are able to elect a governor. ... I love our form of government. I love it for its glory, beauty and its grandeur. I love it for what it has accomplished; but while I love it, I loathe in the deepest recesses of
heart any effort whatever that will go in the direction of taking from the people of Kentucky the right to choose their own officers.” 1
In close connection with the doctrine that all public officers should be elected is the notion of “rotation in office, assumed such a large place in the political philosophy of Jacksonian democracy that it may best be described in Jackson's own words: “There are, perhaps, few men who can for any length of time enjoy office and power without being more or less under the influence of feelings unfavorable to the faithful discharge of their public duties. Their integrity may be proof against improper considerations immediately addressed to themselves, but they are apt to acquire a habit of looking with indifference upon the public interests and of tolerating conduct from which an unpracticed man would revolt. Office is considered as a species of property, and government rather as a means of promoting individual interests than as an instrument created solely for the service of the people. Corruption in some and in others a perversion of correct feelings and principles divert government from its legitimate ends and make it an engine for the support of the few at the expense of the many. The duties of all public officers are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance; and I can not but believe that more is lost by the long continuance of men in office than is generally to be gained from their experience.” 3
Miscellaneous Matters 4
In addition to these significant changes in the structure of American commonwealth government, as it was conceived in
1 Debates in the Kentucky Constitutional Convention, 1890, Vol. I, pp. 1419 ff. 2 Readings, p. 81. 3 Richardson, Messages and Papers of the Presidents, Vol. II, pp. 442-462. * See below, especially, chaps xxii-xxv; and Readings, pp. 87 ff.
early times, we find, in our newer constitutions, a large number of sections relating to matters which were either neglected in the eighteenth century or intrusted to the discretion of the legislature, or which have arisen during the nineteenth century. Indeed our state constitutions mainly reflect the principal legal adjustments which have accompanied the material development of our country and are, in fact, well-nigh meaningless to any one not acquainted with the course of our economic evolution during the nineteenth century. Our recent constitutions make elaborate provisions for the control of railway and other corporations; they contain sections in behalf of labor; they provide in more or less detail for popular education; they take into account the special legal problems created by the rise of the great cities. Several of them make special recognition of the changed position of women in modern society by abrogating the old English legal doctrines in accordance with which her personality was merged in that of her husband while her property passed into his possession or control. Several of our state constitutions expressly provide that women may acquire and possess property of all kinds separate and apart from their husbands; and specifically abolish all distinctions between men and women with regard to the right to acquire, enjoy, and dispose of property and make contracts in reference thereto. Some of the newer constitutions also contain special provisions in behalf of women employed in industries.
* Dr. W. F. Dodd sums up in a scholarly review the recent tendencies in state constitutional developments as follows: “(1) The disappearance of the distinction in form of enactment between statutes and constitutional amendments in the states which have adopted the initiative and referendum. (2) The increase of popular control over state legislation through the spread of the initiative and referendum, and through the enactment of statutory matter by constitutional amendment. (3) The increase of popular control in towns and cities through the granting to cities of power to frame their own charters, and through restrictions placed upon state legislatures as to local and special legislation; and through the introduction of the local initiative, referendum, and recall. (4) The slight increase in the power of the governor over the state administration, and the great increase of the governor's power over legislation. (5) The continued diminution of the power of state legislatures, through the adoption of methods of popular legislation, through express prohibitions upon legislatures with reference to special and local legislation, and through the increased power granted to the governor over legislation. (6) The efforts to subject public service corporations to more adequate control.” Proceedings of the American Political Science Association, 1908, pp. 149–164. Development in the Process of Constitutional Amendment1 When the sovereignty of the British crown and parliament was thrown off, the Revolutionists naturally declared that the popular will was the basis of all government. The right of the people to alter or abolish, and to institute new forms of government on such principles and with such powers as might to them seem most likely to effect their safety and happiness was laid down in the Declaration of Independence. Notwithstanding this, it was a long time before the state constitution-makers came to see that, according to this great democratic theory, every fundamental law ought to provide for a simple mode of amendment through which, from time to time, the electorate might alter or reconstruct the system of government. A number of the first state constitutions made no provisions whatever for amendment, and nearly all of them were put into operation without being submitted to popular ratification. This was due to the confusion of the Revolutionary days during which the constitutions were drafted, to a failure to distinguish between constitutions and statutes, and to the generally prevailing notion that a convention composed of delegates chosen by the electorate had the sovereign power to frame new governments. And, as a matter of practice, amendments were made from time to time, and new constitutions were drafted, by conventions summoned on the mere call of the legislatures without any higher sanction. This seems to have been recognized as a regular method; for, with the exception of the Vermont constitution of 1793, none of the constitutions framed before the opening of the nineteenth century provided that amendments, whether made by the legislature or a special convention, should be submitted to popular vote.
It was therefore only by a gradual process that our constitution-makers arrived at anything like the complete and elaborate system of amendment to be found in the most carefully prepared fundamental laws of our day, such, for example, as that of New York. This process, according to Professor Garner, has four stages. In the closing decades of the eighteenth century it was the common practice to make no provision at all for amend
1 See article on Amendment Systems by Professor J. W. Garner, American Political Science Review, February, 1907.
ments; (1) during the first half of the ninetenth century the method of amendment by convention was fairly well developed; (2) immediately preceding and following the Civil War the more simple method of alteration through a legislative enactment ratified by the voters was widely adopted; (3) during the three or four decades immediately following the Civil War the system of double amendment through periodic conventions and legislative enactments popularly ratified was worked out; and (4) within the last decade has come the still more complete and democratic system of amendment through the popular initiative and referendum.
The effect of this simplification in the amending process is apparent at a glance. Any one who examines the recent history of state constitutions will be struck by the frequency with which they are being revised and amended. Within the last fifteen
. years no less than seven states - New York (1894), South Carolina (1895), Delaware (1897), Louisiana (1898), Alabama (1901), Virginia (1902), and Michigan (1908)— have drafted new constitutions. Furthermore, owing to the great detail in which our constitutions are now being elaborated, frequent amendments, usually of minor importance, are required.? New York, since 1894, has adopted about twenty amendments; and there is scarcely a state election at which some new alteration in the constitution is not submitted to the voters for ratification. The southern states have made the most frequent constitutional changes, but this has been largely due to circumstances connected with the Civil War. Alabama has had five constitutions,
* Several of our state constitutions, however, extend back beyond the Civil War. In Massachusetts, the constitution of 1780 with amendments is still in force; the fundamental structure of the government of New Hampshire, as devised in 1792, still stands in spite of the slight redrafting of 1903; and Vermont retains her fundamental law of 1793, with amendments.
* In the state elections of 1906 no less than 69 constitutional amendments were submitted; in California 14, 8 adopted and 6 rejected; in Louisiana 12, II adopted and i rejected; Idaho 6, 5 rejected and i adopted; in Oregon 5, 4 adopted and i rejected; in Florida 5, all rejected; in South Dakota 4, all adopted; in Kansas 3, all adopted; in Minnesota 3, 2 adopted and i rejected; in Georgia 3, all adopted; in Texas 3, 1 adopted and 2 rejected; in Washington 2, both rejected; in Missouri 2, both adopted; in Arkansas, Colorado, Mississippi, Montana, Nebraska, North Dakota, and Indiana i each. Fortyfive of the 69 submitted were adopted. R. H. Whitten, in the Political Science Review for February, 1907, p. 249.
Georgia six, Louisiana seven, Maryland four, Mississippi four, South Carolina six, and Virginia six. The states of the Middle West have had but few general constitutional revisions; the Indiana constitution of 1851, the Iowa, Minnesota, and Ohio constitutions of the same period, and the Illinois constitution of 1870, with amendments, are still in force.
A survey of our state history during the last quarter of a century undoubtedly reveals that our commonwealth constitutions are becoming more and more cumbersome and complex; and affords but little consolation to those who believe, with President Woodrow Wilson, that "the prompter we grow in applying with unhesitating courage of conviction all thoroughly tested or well-considered expedients necessary to make selfgovernment among us a straightforward thing of simple method, single, unstinted power, and clear responsibility, the nearer we approach to the sound sense and practical genius of the great and honorable statesmen of 1787.”