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State Constitution-Making

INTRODUCTION.

WHAT A CONSTITUTION Is.

The Essential

Rule.

The development of democracy is a reflex of the evolution of popular intelligence. Democracy's success depends upon the intelligence of the people, just as the success of any other ruling 1. power depends upon the intelligence of the ruler. Any people, of Democratic therefore, that would develop a wise and just government through which to rule must look first to their own education and must prepare themselves thoughtfully and laboriously for the task of governing. How well the people of an American state have done this is apparent first of all in the written intrument in which they have sought to express what they conceived to be their fundamental “rights” as individuals under the common government they have set up, and to provide in broad outline the manner in which the process of government shall be carried on and through what agents the functions of government shall be accomplished.

Such written instruments are what Americans call their constitutions. They usually contain the results of the experience gleaned through many years preceding their adoption; and 2. immediately after their adoption in the very fact of their use, are subject they begin to undergo change. The latter far-reaching truth was clearly realized by the framers of the Fundamental Constitutions under which the proprietors of Carolina sought to establish what they considered a model commonwealth in the latter half of the seventeenth century, and there was included the stipulation that, in order

Constitutions

to Evolution.

to avoid multiplicity of laws, which by degrees always change the right foundations of the original, all acts of parliament whatsoever, in whatsoever form passed or enacted, shall, at the end of an hundred years after their enacting, respectively cease and determine of themselves, and without any repeal become null and void, as if no such laws had ever been made.

Furthermore,

since multiplicity of comments, as well as of laws, bave great inconveniences, and serve only to obscure and perplex, all manner of comments and expositions of any part of these Fundamental Constitutions or any part of the common or statute law of Carolina, are absolutely prohibited.

The notable development and expansion which the Constitution of the United States experienced under the masterful guidance of Chief Justice Marshall forms the most palpable evidence of change in fundamental law without formal amendment; yet it is equally true that whenever the people, functioning through their legislators, administrators or courts, perform any governmental act, they are interpreting the meaning of the constitutional instrument; and as they do this their thoughts concerning its meaning gradually change and custom makes the constitution something that formerly it was not. This by no means amounts to the statement that the constitution is always just what the people at a given time want it to be. Frequently they refuse to interpret it to mean what they wish it meant because the language of the written instrument is very plain or because a particular interpretation has become a petrified custom. But it is true, none the less, that no constitution can remain static. Like everything else in life, the fundamental law of a living people is always evolving, though the words called the constitution remain the same.?

The Tennessee court has been a strict-constructionist court.3

The people of Tennessee have preserved, as perhaps it has been tion of preserved in no other part of the country, the individualism Constitution. which pervaded the thought of the times when the first state con

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Slow Evolu

Tennessee

iThorpe. American Charters. Constitutions and Organic Laus, Vol. 5, p. 2772 (2782, sec. 79-80).. The constitutions were chiefly the work of John Locke and were prepared at the instance of the Proprietors of Carolina. Locke's Works, (8th edition) X, 175.

2Prof. Beard (American Gorernment and Politics, 72, seq.) shows clearly how, in addition to formal amendment, constitutions are subject to development through statutory elaboration, judicial expansion and such changes, brought about by custom, as occurred when the electoral college, designed to choose the President, became merely a figure head, bound by party command.

In interesting confirmation of this statement- to cite a single one from the great number of cases--is the decision that the legislature in making the continued operation of a local law contingent upon the favorable vote of the county was delegating its legislative powers to the extent of transcending its constitutional authority. The law in question was an amendment to a law that prohibited the running at large of hogs, sheep and goats in Rhea County. Wright v. Cunningham, 115 Tenn., 445, 91 S. W., 293 (1905).

stitutions were being made, and, in an era of development away from individualism, they have characteristically frowned upon change. It is evident, nevertheless, that the state's fundamental law has not been static and in a sense it is inaccurate to speak of the constitution as of 1796 or 1834 or 1870. These are, indeed, years in which conventions have been commissioned by the people to change the formal wording of their constitutional instrument so as to make it more nearly conformable to what experience has shown can be readily interpreted according to the popular desire, but they have not determined the status of fundamental law for all the intervening years. Viewed thus strictly there is no constitution of Tennessee except the constitution of today, and the people of the state in criticising it are criticising themselves alone. In changing it clearly and distinctly through the utterances of a convention or a specific amendment to the written instrument, instead of uncertainly through slow and not always well-proportioned development, they will be merely accomplishing efficiently and directly what in time would to some extent come about through the action of public officials and the evolution of popular thought. That the people cannot by inaction altogether obstruct constitutional change is a fact which should always be borne in mind.

Viewed historically, there is no inherent reason why there 4. should be written constitutions. England's constitution of more written and permanent principles, according to which the government functions, is not a written document, nor yet a specific instrument with superadded judicial and other official interpretation, but a vast collection of treaties, solemn engagements, like Magna Charta, parliamentary statutes setting forth governmental powers, the great body of legal lore known as the Common Law and, finally, the habits, practices and understandings—"the con

Constitutions

Unwritten.

For the social and historical reasons for this. see Indiridualism in Tennessee History. L'niversity Day Address, 1904, by Prof. Charles W. Turner, University of Tennessee Record, Vol. 7, No. 5, p. 281.

sFor interesting cases in which the court has clearly occupied new ground to conform with new needs and new conditions, see Arnold v. Knorcille, 115 Tenn.. 195: 90 S. W., 469: 3 L. R. A. (N. S.), 837n (1905), reversing the court's former holding and permitting special assessments for local improvements; and Frazier v. Telephone Co., 115 Tenn., 416; 90 S. W., 620; 3 L. R. A. (N. S.), 323n

telegraph poles erected in a street in which the public has an easement do not constitute an additional burden upon the fee.

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