Power in of the State remained limited as they had been, and the people of the Colony in their primary capacity became the sovereign constitution-making power in the State.' The citizens within the limits of the old Colony were the body politic. They were the State. This body politic had absolute and supreme authority over the citizen within its bounds, in all matters in respect to which he was a subject of government. The new State had as it now retains, absolute control over all local political bodies within its limits, its counties, cities, and townships. It had, and retains, power to remodel city charters and revise city governments; it may reorganize or disorganize its counties and townships, and there is no appeal to any higher authority against its action. In the matter of limitations on legislative power, the fundaConstitutional Limitations on mental difference between the United States Legislative Constitution and the State constitution lies in this: The States voluntarily deprive themselves of and relinquish to the national legislature the powers which that body may exercise; all other powers are retained to the States. The people of the States have conferred certain legislative powers on the national Congress, denying these to themselves, but retaining all others. But in forming their State constitution the people of a State do not confer legislative power on their legislature. From the nature of the sovereign State all the residuary mass of powers abides in the legislature, unless denied. The people restrict their State legislature in certain respects, including all the restrictions of the United States Constitution, but in all other respects in which government is competent to act, the legislature of a State is free, sovereign, and supreme. He who asserts the power of a State legislature to pass an act or establish an institution has not to prove it; but he who denies the power must cite the clause of the Con1 See Bryce, vol. i., p. 429. stitution forbidding it. Barring the specified restrictions of the State and national constitutions the power of a State legislature is like that of the British Parliament: it is plenary and unlimited, and it may legislate for all purposes of civil government and do all things that independent governments may do. In framing a State constitution the people commit to the legislature the whole law-making powers of the State which they do not expressly or impliedly withhold.' Of course, all departments of the State government, legislative, executive, and judicial, are limited by the State constitution to their respective spheres and cannot infringe the one upon the other. The Depart ments of Government are Separate and Re stricted. Defined. The rights of the States are defined partly by their reserved powers, partly by the powers withheld from them by the United States Constitution, partly States' Rights by the powers conferred on the National Government, partly by the judicial decisions and interpretations of the courts, and partly by the accepted facts of our national history. Whatever these rights may have included in the past, it is certain that they do not include the right of nullification and secession. Nullification was settled by Andrew Jackson; and that a State may not secede was settled as one of the prime results of the Civil War. No State may attempt to coerce another, nor establish diplomatic relations with another State, nor in any way deal with nor act upon another. These powers touching inter-State and foreign relations are conferred on the General Government. From what has been said, it will be understood that the State constitutions do not derive their authority from Congress. The States do not receive their powers from the General Government. In Canada the Provinces have only those powers that are conferred upon them by the Constitution of the Dominion, while all other powers are 'See Cooley's Constitutional Limitations, p. 107; Bryce, vol. i., p. 445. State Powers reserved to the Dominion Parliament.' In the States it is just the other way. The powers expressed in the State constitutions are original and inherent, not are Original conferred. Congress does not determine the and Inherent, terms of these instruments. Congress may inNot Conferred. fluence the character of a State constitution by imposing such conditions upon the admission of a State as will lead it to conform its constitution to certain requirements, as was proposed in the case of Missouri, in 1820. But it is doubted whether Congress possesses constitutional authority to do this, and it is a power that is rarely exercised. If conditions were imposed upon an incoming State and the State should subsequently amend its constitution in order to have its own way, Congress would have no remedy against such action by the State, except to deny to the people of the State representation in the two Houses of Congress. The State would still remain in the Union in the exercise of local self-government in the control of all its own domestic laws and institutions, like the other States. How State are Made. State constitutions are usually adopted by State conventions elected for that purpose. The constitution after being framed by the convention is then, as a Constitutions rule, submitted to the people of the State for ratification or rejection. If the constitution is rejected at the polls a new constitution is devised by the convention; if ratified, the constitution is proclaimed by the governor, or legislature, appointed to perform that function. Sometimes a new constitution is adopted in a State merely by the constitutional convention without submitting it to the people. This is a departure from the American constitutional usage, and is resorted to usually from fear that the voters under the old constitution will not approve certain proposed features in the new. Under this practice the convention is looked upon as holding 1 British North America Act, 1867. within itself the sovereign and supreme will of the people. This method of constitution-making is resorted to more in the South than elsewhere as a more convenient means of imposing suffrage restrictions. It is, of course, not so democratic as the method of popular ratification. Amending State In the process of amending a State constitution the legislature takes the initiative. The amendment must be made according to the provisions of the existing constitution. These will probably require that the proposed amendment shall pass the Constitutions. legislature by a two-thirds majority, or by a majority in two successive legislatures, and then be submitted to the people for approval. Or, the legislature may call a Con、 stitutional Convention, or ask the people to decide upon the desirability of such a convention for the purpose of revising the whole constitution or of making a new one. When a constitutional amendment is submitted to the people for ratification, however desirable the amendment may be, it is likely to fail of adoption from the indifference and apathy of the voters. If the amendment be submitted at a special election the majority of the voters may not care enough about the matter to come to the polls. If submitted at a general election, many voters will be likely to vote for State and National officers while failing to vote on the amendments; and as the constitution will generally require a majority of all the votes cast to carry an amendment, the amendment may fail merely from the failure of the voters to express themselves upon it.' Amendments are Difficult to Secure. Constitution-making or amending, by popular vote, is one of the chief forms of the referendum in America. The making of local-option laws on the liquor traffic, and money grants by taxation to aid in building railroads, are other forms of the Forms of the in the State. 'See The Nation, Jan. 10, 1902, for failure of Referendum on Amend. ments. referendum. By the referendum is meant the provision that laws must be referred to the people before they can be binding. The referendum is generally associated with the imperative mandate. This provides that when a certain proportion of the people have petitioned for the enactment of a law, this shall serve as a mandate to the legislature to submit the act to a popular vote. Of course only questions relating to general public policy, and not statutory matter touching private and local law, would be so submitted. The objection to the referendum is that the people will be too frequently disturbed; that they will not be interested in voting on the proposed laws, as experience has shown in the efforts to amend State constitutions.' Though a State legislature might permit a referendum for its guidance, the legislature itself would have to enact the law unless the constitution of the State be first so amended as to provide for law-making by referendum. It is a maxim of law that delegated power may not be delegated. When the supreme power-the people-have vested law-making in the legislature, it must remain there until the people determine otherwise by a new constitution. "The power to whom this duty has been entrusted cannot relieve itself of responsibility by choosing other agencies upon whom the power shall be devolved."' The State The State legislature is bicameral in form. Both Houses are chosen by popular vote, by the Legislature. same voters, but in electoral districts of different sizes. Senatorial districts are larger than Representative districts; consequently there are fewer Senators. The senatorial term is generally longer. The usual term of a Representative is two years; the senatorial term in most of the States is for four years. The State 1 See The Nation, Jan. 10, 1902. See, also, the author's Political Parties and Party Problems in the United States, chap. xxii. Cooley, Constitutional Limitations, p. 141. |