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and is now practiced by a number of States. This new method is known as the Initiative because the proposed amendment is initiated by voters. When a prescribed per cent of the legal voters —e.g., eight per cent in Oregon - desires to have any part of the constitution changed they sign a petition stating exactly what change they desire. This proposal is sent to the secretary of state, who places the proposed change upon the ballot for the next State election. If a majority of the voters cast their ballots in favor of the change the constitution is thus amended.
At the November election of 1914 forty-one amendments were initiated by the voters of nine States as compared with 161 proposed by the legislatures of twenty-four States. Only seven of the initiated amendments were accepted by the voters, and eighty-one of those proposed by the legislatures.
157. Present Tendencies. Our early State constitutions were very brief, rarely containing more than 5000 words, but most of the State constitutions of to-day contain from ten to twenty times as many words as the original documents.
There are two reasons for this increase in length. First, the government performs so many more functions now than it did when the first constitutions were adopted. Second, the members of a constitutional convention now lack confidence in the ability of the ordinary member of a State legislature and think it best to include in the constitution itself many detailed laws which were originally left to be enacted by the legislature.
The constitution of Oklahoma, one of the most recent, goes into such minute detail as to enumerate the classes of persons who are permitted to accept railroad passes, and contains about 50,000 words. Laws which go into great detail need to be amended frequently, and since 1902 many States have adopted the easier method of amending their constitutions — the initiative method.
1 For complete list of Initiative States see Section 244.
Those States which have not adopted the new method of amending their constitutions are obliged to resort to the old methods more frequently. Never before 1914 were as many as forty-one amendments initiated by the voters in any one year, nor were as many as 161 ever submitted by the legislatures.
158. Authority of State Constitutions. — The constitution with its amendments constitutes the supreme law of the State, and it overrides any laws enacted by the legislature which conflict therewith. Whenever a legislature passes a law which conflicts with some provision of the constitution the first person who is in any way inconvenienced by the law may refuse to abide by it, and permit some one to sue him because he knows that the court will declare the law null and void, that is, of no force.
For example, a few years ago the legislature of New York State enacted a law providing that any employer whose workmen are injured in certain enumerated dangerous pursuits, such as stone quarrying, must compensate the workmen by a money payment, whether the employer was at fault or not. The first employee who was injured demanded his money. The employer refused to pay him, claiming that the law was contrary to the constitution of the State. The workman sued the employer, but the highest court of the State (Court of Appeals) decided that the law did conflict with the constitution, was thus null and void, and could not be enforced.
The legislature still thought that there should be such a law; therefore two successive sessions proposed an amendment to the constitution and submitted it to the people. The majority of voters cast their ballots in favor of it, and thus changed the constitution so that the next legislature could enact the same workmen's compensation law, for it would no longer conflict with the constitution. The next legislature did pass the law, and to-day the courts enforce it.
159. Relative Rank of Laws. The following outline shows the relative rank of laws in the United States :
United States Constitution.
“regulations” or “by-laws" and town
or city “ordinances" or "by-laws." The Constitution of the United States is the supreme law of the land, and every other law is subordinate to it. If Congress passes any statute which conflicts with the Constitution of the United States or if the President and Senate make any treaty which conflicts with the Constitution of the United States, such statute or treaty will not be enforced by the courts.
Likewise, if a State constitution contains any provision which is contrary to the Constitution of the United States or to a statute of Congress the same cannot be enforced. Furthermore, if a State legislature enacts a statute contrary to the Constitution of the United States, a statute of Congress, or a provision of the State constitution it cannot be enforced. Or if a county board or town or city council passes a by-law contrary to any of the above laws, it is void and the courts will not enforce it.
It is impracticable to write definite laws regulating in detail all possible human actions ; so in addition to the above written laws we have a set of rules and principles which are not written in any definite form but are enforced by the government. These rules and principles grew out of custom and court decisions in England during a number of centuries, and because they were uniform throughout all England they were called common law. When the American States became independent of England they retained the English common law to supplement their definite written laws.
As each American State has a distinct system of courts the common law rules and principles have become different in some details in the various States; but as decisions of the courts of each State are known to the judges of the courts of each of the other States these rules and principles remain very much the same throughout the country.1
1 Equity is similar to common law, see Sec. 182.
If there is a case in court for which there is no definite written law it must be decided according to the rules of common law. Occasionally a case arises which is unlike any previous case; for instance, a suit growing out of the collision of aeroplanes. There are few express laws governing such a a collision, but there are rules establishing a standard of care in the case of other classes of vehicles, so the court would apply the general rules and principles of the common law for vehicles to aeroplanes and thus determine the case by analogy.
DEALEY, J. Q. Growth of American State Constitutions. 1915. DODD, W.F. Revision and Amendment of State Constitutions. 1910.
State Government in the United States. 1922. KETTLEBOROUGH, C. The State Constitutions. 1918. THORPE, FRANCIS NEWTON. Federal and State Constitutions.
7 vols. 1909. A copy of the State Constitution can usually be obtained gratis from
the Secretary of State.
QUESTIONS ON THE Text
1. What is a State constitution ?
2. Of what six parts does a State constitution commonly consist ?
3. For what purpose is a constitutional convention assembled ?
4. What part do the voters usually take in making a new constitution ?
5. What is meant by partial amendment of a State constitution? Describe in detail how it is accomplished in the State in which you live.
1 Louisiana, which State obtained its system of laws from France, is the only one that did not adopt the common law.
6. What new way of amending constitutions has developed since 1902? Explain this method.
7. What are some of the present tendencies of State constitutions ?
8. If you are in any way inconvenienced by an Act of the legislature which is contrary to the constitution, need you abide by it?
9. If a law is declared unconstitutional is there any possibility of making it constitutional?
10. Name the various kinds of laws in the United States according to their relative rank of importance.
QUESTIONS FOR DISCUSSION
1. The members of the English House of Commons are elected for a term not exceeding five years. When the five-year term expired in 1915 the House continued to sit without an election because of the war condition. Could the United States House of Representatives prolong its term of office with the assent of the Senate? (See U. S. Constitution, Art. I, Sec. 2.)
2. Suppose South Carolina should add an amendment to its consti. tution depriving negroes of the right to vote. Would this be a valid Jaw? (See Amend. XV.)
3. The constitution of New Jersey restricts the right of suffrage to male persons 21 years of age. Does this law prevent women from voting in New Jersey now? (See Amend. XIX.)
4. Women as well as men are permitted to vote in Colorado. Could a constitutional convention or the State legislature permit women to vote for United States congressmen without permitting them to vote for members of the more numerous branch of the State legislature? (See U. S. Constitution, Art. I, Sec. 2.)
5. The constitution of Virginia, until recently amended, provided that all cities of the first class should be governed by a two-body council. Staunton, Virginia, a city of the first class, desired to be governed by a single body commission. Could it be so governed ?
6. If Congress defines intoxicating liquor as one containing a certain per cent of alcohol and the legislature of New Jersey defines it as liquor containing a larger per cent of alcohol, what legal question is involved?
7. When and under what circumstances was the constitution of your State adopted ? Was it approved by the people? Prepare a brief outline of it showing the main topic of each division and article.