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PART II

CURRENT THOUGHT AND ACTION UPON

CONSTITUTIONAL PROBLEMS.

CHAPTER V.

WHAT CONSTITUTIONS Contain.

Nature and

The forty-eight state constitutions, if published together, 65. would form a volume many times the size of the present one. Scope of

Chapter 5. They contain in the aggregate something like one million words and vary in length from six thousand words as exemplified by the Rhode Island constitution of 18422 to the fifty thousand words of the instrument adopted in Oklahoma sixty-five years later.3 Obviously it is to be expected that they will display a widely varying range of contents, and that they cannot be easily described as a whole. Their more interesting and important topics will require treatment in separate chapters, but introductory to these discussions brief account may appropriately be taken of the historical development and present tendencies of the state constitutions, of their general range of subject matter and of those portions of them which are of comparatively slight importance or which at present are not the subject of sufficient controversy to make particular exposition urgent. It seems well, furthermore, to describe entire one illustrative con

1General References: Dealey, J. Q., Growth of American State Constitutions ; Stimson, F. J., Federal and state Constitutions in the United States; Willoughby, W. W. The American Constitutional System ; Dodd, W. F. The Revision and Amendment of State Constitutions; Beard, Chas. A., American Government and Politics ; Wilson, Woodrow, The state.

2The Conn. const. of 1818, as amended. contains about 10,000 words. The New Jersey constitution of 1844 is about the same length.

The most recent and second longest of the state constitutions is that of La. (1913). It was adopted in convention and not submitted to the people.

66. Development and Grouping of Constitutions.

stitution, and for this purpose that of Ohiot has been chosen because among the constitutions of the older and larger commonwealths it displays most clearly the leading modern tendencies in constitution-making. The rejected work of the most recent constitutional convention, that of New York in 1915, will also be discussed for similar reasons.

When the states first became free commonwealths and began to frame constitutions for their government, conditions were simple and needs that could not be fulfilled by individual endeavor were few; consequently no elaboration was required and the early instruments undertook almost nothing save a statement of their makers' ideals of free government, especially what ought not to be done under a free government, and provisions indicating what the governmental framework should be. As American life became more developed and complex, constitutions naturally contained more provisions and were more and more altered to meet the improvements suggested by growth and experience. Nevertheless several of those whose size and general content bear the impress of colonial times remain in force today and form a distinct group among the state constitutions. Massachusetts, indeed, still retains the constitution adopted in 1780, though with numerous amendments.

A second fairly distinct group of constitutions comprises those adopted mainly during the second half of the nineteenth century. They illustrate the intermediate development-increasing attention to detail, new restrictions, both positive and negative, upon the legislature and more definite governmental organization. The second quarter of the ninteeenth century had witnessed many remarkable changes in the state constitutions. The democracy of the country asserted itself; property qualifications upon voting and office-holding were swept aside and the number of elective officers was greatly increased. The augmented electorates were distrustful of the governments and

*The Ohio constitution of 1851 was extensively amended in 1912. Michigan (1908) is also a good example.

The development of the state constitutions will be discussed in chapter 8 from the point of view of governmental organization.

In this group, also, should be placed Conn. (1818) ; R. 1. (1842) ; N. H. (1792). See Beard, op. cit., 445-6.

ie. g., la. (1857); Ill. (1870); Ind. (1851) ; Ky. (1891); Minn. (1857); Mo. (1875); Neb. (1875); N. Y. (1894); Pa. (1873); Tenn. (1870); Wis. (1848).

eager to assume more functions themselves—a tendency which continues today in the movement for the initiative and referendum.

A third group of constitutions is found in those adopted in several of the southern states near the close of the last century, characterized by ingenius devices for restricting negro suffrage together with a number of rather eccentric details of various kinds, and occasional carefully drawn statute-like clauses for accomplishing purposes not usually deemed of fundamental nature.1

This latter characteristic is the distinguishing feature of the fourth and last group that may be set apart among the state constitutions. They are found among the newer states in the west, beginning with the California constitution of 1879,3 and they exhibit par excellence the determination of the people to restrict the powers and functions of the legislature.

It will be remembered that the chief function of a state con stitution is to limit the otherwise plenary power of the state Bl legislature and that in this respect are the state constitutions Constitu. most fundamentally different from the constitution of the United Statutes. States, which is a grant of power beyond the terms of which Congress has no authority to proceed. This function of the state constitutions is carried so far in some of these newer ones, however, as to leave little residuary authority. Furthermore, they lay down so many mandates that it is difficult for the courts to determine whether their makers intended the expres. sion of the particular powers to exclude others, not expressed. Numrous lengthy and detailed provisions make these constitutions resemble codes of statutes and, of course tend to lessen the difference between the constitution and ordinary laws-a difference which is being further obliterated by the introduction of the initiative and referendum—already adopted by about onethird of the states.

67. Lessening Distinctions Between

tions and

se. I., The Miss, method of electing state officers.
se, I., La, Juvenile court clause.
le. 9., Va. (1902); S. C. (1895); Ala. (1901); Miss. (1890); La, (1913).

2Many of them do not fall clearly in any one of the groups, but partake of the characteristics of two or more of tbem,-e. 9., Ohio (1851, extensively amended, 1912).

3e. g., Okla. (1907); Ore. (1857, amended 1902, 1906, 1908). The Okla. constitution is the most famous of this group.

*Does the doctrine Erpressio unius est erclusio alterius apply?
*Concerning public service corporations, for example.
infra, ch. 11.

It has been the custom of political writers to decry this tendency. For example, Woodrow Wilson, in The State," after remarking that “one of the most characteristic circumstances connected with our state law is the threatened loss of all real distinction between constitutional and ordinary law," asserts that

the objections to the practice are as obvious as they are weighty. General outlines of organization, such as the Constitution of the United States contains, may be made to stand without essential alteration for long periods together; but, in proportion as constitutions make provision for interests whose aspects must change from time to time with changing circumstance, they enter the domain of such law as must be subject to constant modification and adaptation. Not only must the distinctions between constitutional and ordinary law hitherto recognized and valued tend to be fatally obscured, but the much to be desired stability of constitutional provisions must in great part be sacrificed. Those constitutions which contain the largest amount of extraneous matter, which does not concern at all the structure or functions of government, but only private or particular interests, must of course, however carefully drawn, prove subject to most frequent change. In some of our states, accordingly, constitutions have been as often changed as important statutes. The danger is that constitution-making will become with us only a cumbrous mode of legislation.

To so careful an observer as Professor Dodd, however, this danger furnishes little occasion for alarm. “A state constitution,” he reminds us, "is an instrument, a means to an end, and is of no importance for its own sake alone."'!

It may be true that the national constitution should be primarily an instrument embodying fundamental provisions and defining the respective powers of the state and national governments. Yet this is not because the instrument is called a constitution; it is because the success. ful operation of a federal system requires some fairly permanent demarcation of national and state powers. There is no inherent reason why an instrument of state or national government should contain only provisions of fundamental law. A constitution must be judged not by its name but by the function which it has to perform.

?pp. 474-5 (1906 Ed.).

Functions of a State Constitution, XXX Political Science Quarterly, 201 (215, 221)—June, 1915.

Compare Wilson, op. cit., 636; “Society, it must always be remembered, is vastly bigger and more important than its instrument, Government. Gov. ernment should serve Society, by no means rule or dominate it. Government should not be made an end in itself ; it is a means only, a means to be freely adapted to advance the best interests of the social organism. The State exists for the sake of Society, not Society for the sake of the State."

Consequently

even with the tendencies such as they now are, the state constitution still has a function distinct from that of statute. The constitution can never contain the great mass of general legislation of the state, and should deal with matters legislative in character only when, and in so far as, such matters are relatively more important. State constitutions contain and will continue to contain much of purely legislative detail, but such detail should, and is likely to, remain incidental to the main function of the constitution as an instrument organizing a state government and determining its powers. And even with the larger function of state constitutions, the constitution itself need not be materially lengthened. . . . Many provisions in state constitutions have been inserted to meet conditions that no longer exist. Such provisions tend to persist, and the constitution lengthens by a process of cumulation. If constitution makers will winnow out provisions no longer desirable, they need not lengthen the constitution, even though at the same time they place in it many new provisions not properly fundamental in character.

Essential

of a Con

According to a well-known writer upon constitutional sub-68. jects the essential elements of a written constitution such as Elements is found in the states of the Union are (1) a statement of the stitution. organization and functions of the political state, including the electorate, the public officials and the character of the laws, if any, to be enacted by the electorate; (2) the organization and functions of the government, (3) the restrictions upon the government, especially the Bill of Rights, and (4) the mode of amending the constitution. State fundamental law, however, includes much besides these essentials. Taking as a whole the constitutions as they exist today, the 69:

" The Typical typical one is found to contain about 22,000 words and may be Constitution. described as beginning with a preamble, the words of which are,

Harry Pratt Judson, in Cyclopedia of American Government, I, 431, seq. See, also, his Essentials of a written constitution, Univ. of Chicago decennial publications, Vol. IV.

2Prof. Beard (op. cit., 447) classifies the contents of the state constitutions into six parts,-(1) bill of rights; (2) sections providing framework of gov. ernment, central and local and the fundamental limitations of each branch : (3) sections dealing with state finances, principally to fix debt limits and prevent failure to meet obligations; (4) control of economic interests, such as railroads, insurance companies, banking and labor; (5) education and social welfare : (6) amending clause. Judge Cooley's classification (Constitutional Law, 38 ) is (1) description of the frame of government; (2) generally the qualifications upon the right of suffrage; (3) the usual checks and balances of republican government, recognizing the three separate departments; (4) some recognition of local self-government; (5) declaration of rights for the protection of individuals and minorities/general principles of republican government: fundamental rights of citizens; impartial trial and the protection of life, liberty and property.

This is the average length.

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