The process of state constitutional amendment has often been applied for the purpose of either removing specific constitutional provisions that have ceased to be desirable or of altering the interpretation given by the courts to a broad and indefinite constitutional provision. What is done by a constitutional change in the latter case, is, of course, to establish in the constitution a power which has by judicial interpretation been denied, and to overcome for the future the result of such a decision. The drainage amendment in this state in 1878 was adopted for the express purpose of meeting a difficulty raised by a judicial interpretation of the existing constitutional provision. Provided the method of amending a state constitution is relatively easy, the people of a state have the privilege if they desire, of adopting into their constitution a policy different from that declared by the highest court to be established by existing constitutional provisions, and this may be called either an overruling of the state court or the establishing of a different constitutional policy. Amendments altering state constitutional provisions, as judicially construed, have not been infrequent. Thus the people of Colorado in 1902 inserted into their constitution a provision fixing an eight hour day in mines and smelters, thereby establishing a different policy from that of a decision of the supreme court. So the people of New York in 1913 overcame the result of the New York court of appeals' decision, insofar as it declared compulsory workmen's compensation to be a violation of the state constitution. In a number of other cases, constitutional amendments have been adopted for the express purpose of establishing in the constitution a policy previously declared by the highest courts to be violative of due process of law. The proposed recall of judicial decisions was at first thought to present an easier method of passing upon constitutional issues raised by judicial decisions, but there appear to be no advantages of the plan as compared with that of specific amendment to the constitution. It was urged that the recall of decisions would be more adaptable than the method of amending the state constitution. If, for example, a workmen's compensation law was held unconstitutional, it was said that what the people desire to do is to vote whether that particular law shall be brought back into force; and not to vote on a constitutional amendment authorizing the legislature to enact compensation laws in general, thus permitting the passage again of the law held unconstitutional or the passage of a law of a different character from the one held unconstitutional. The people, it is said, want the law which has just been declared unconstitutional, and by the recall of the decision the constitutional bars are to be let down just far enough to permit that particular law to get over. Yet, if a policy is desired different from that laid down by the highest state court, the thing that is probably desired is the possibility of dealing with a general problem rather than that of keeping a particular law in force. Important laws declared unconstitutional under broad constitutional guarantees usually relate to legislation which is more or less in a state of experiment. Let us suppose that a workmen's compensation law were passed by a state legislature and then held unconstitutional by the highest state court, as was the case in New York. The decision of the court is recalled. That is, the particular law in question is no longer to be open to state constitutional objection. The law comes into force and some of its provisions work badly. In order to remove these undesirable features, the next legislature amends the measure in some important respect. Now, the popular vote on the original measure has said that the particular measure of workmen's compensation, and that measure only, should be relieved from state constitutional provisions, as interpreted by the state court; and the court would, if it accepts this popular interpretation of the constitution, now probably hold the amended compensation law unconstitutional, and matters are back at the point from which they started. The proposed recall of judicial decisions is less adaptable and more cumbersome than are the present methods of amending constitutions in most of the states. The Colorado provision adopted in 1912 has not been used, and is hardly likely to be used. Of course, it should be borne in mind that all that could be accomplished by a recall of judicial decisions or by any other method of overcoming or of preventing a judicial annulment of a state law is that of saying that the state law is not subject to state constitutional objections. Whatever plan the state may adopt with respect to any such matters as are here under consideration will, of course, leave legislation subject to the broad guarantees in the federal constitution against state action. This matter is further commented upon in paragraph 3 above, where the subject of duplicate limitations is discussed. (7) Ohio and North Dakota have adopted a plan by which an extraordinary majority of the supreme court is required to declare a law unconstitutional. The Ohio Amendment of 1912 provides that "no law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of the judgment of the court of appeals declaring a law unconstitutional and void". The courts of appeals in Ohio are composed of three judges, and may not reverse the action of lower courts of record except by majority action. If a plan of this sort is to be adopted, the Ohio plan seems pretty clearly unwise. This plan really places upon two out of three judges in an inferior appellate court the power to declare laws unconstitutional subject to a majority support by the supreme court, and might well have the effect of giving greater authority to the decisions of the lower court. A lower court, if there were doubt, would probably resolve it against the statute and so leave the supreme court authority to declare the statute unconstitutional by majority action. In the six years following 1912, the supreme court of Ohio seems to have been almost as active in declaring laws unconstitutional as in the six years preceding that year. There have been only one or two cases in which the amendment would have had any effect, because in practically all of these cases there was not more than one dissent. There has been one case at least13 in which the court declared a law constitu 13 98 Ohio State 446 (1918). tional although four of the seven judges regarded it as unconstitutional, but there have been no other such cases. There seems some basis for the view that the court makes an effort to come to a unanimous opinion if possible upon constitutional matters, and it may be that if there is a clear majority in favor of such a view the court would agree to have not more than one dissent recorded. The Ohio plan has another difficulty in that one court of appeals may declare a law constitutional and another court of appeals declare the same law unconstitutional. Under the Ohio provision, it would be possible for the supreme court to hold the statute void in affirming the judgment of one court of appeals, but without authority to take the same view as to the action of another court of appeals. Probably, however, if such a case occurred, the decision that the act was unconstitutional, in affirming the judgment of one lower court, would be regarded as binding upon the state as a whole. A proposal submitted to the people of Minnesota in 1914, but rejected, provided that "no statute shall be declared unconstitutional unless five (out of seven) members of the court shall concur in the decision." The state of North Dakota in 1918 adopted a constitutional provision that "in no case shall any legislative enactment or law of the state of North Dakota be declared unconstitutional unless at least four of the judges shall so decide." The North Dakota supreme court is composed of five judges. If a plan of this sort is to be adopted, the North Dakota and Minnesota provisions seem more satisfactory than that adopted in Ohio, although under the amendment adopted in North Dakota the question may present itself as to whether the supreme court is declaring a law unconstitutional if it affirms the judgment of a lower court holding a law invalid. The North Dakota constitutional provision has been in force for too short a time for any comment to be made upon its effect. The platform of the labor party in this state favors a constitutional provision that no law shall be declared unconstitutional except by the unanimous action of the supreme court. With respect to this suggestion and also with respect to the suggestion for the requirement of an extraordinary majority of the court to declare laws unconstitutional, some analysis should be made of decisions in this state declaring laws unconstitutional. Two hundred and eight decisions of the supreme court of Illinois declaring laws unconstitutional under the constitution of 1870 have been analyzed. In these cases there were 53 dissents, and of these 26 were dissents without opinions. In 20 cases there was one dissent; in 18 cases there were two dissents; and in 15 cases there were three dissents. If the concurrence of all but one of the members of the supreme court had been required to declare laws unconstitutional, this would have meant for the period since 1870 that 33 out of 208 laws might not have been declared unconstitutional. This, of course, is based on the assumption that the judges would have taken the same view in the face of such a constitutional restriction that they took in the absence of such a restriction. It should be borne in mind that the judges who may desire to dissent in one case may feel that in other cases there should be a relative degree of ease in declaring that a statute is invalid; and that they might on that account waive their opposition in one case in order to aid in the establishment of a practical rule, which would destroy the effect of a constitutional provision limiting the court. The chief objection to the power of the courts to declare laws unconstitutional has reference to the use of broad constitutional guarantees as against social and industrial legislation. A list is here given of the more important cases in which laws of this character have been declared unconstitutional by the supreme court of Illinois: Ramsey v People, 142 Ill. 380 (1892) Ritchie v People, 155 Ill. 98 (1895) Harding v People, 160 Ill. 459 (1896) Ruhstrat v People, 185 Ill. 133 (1900) Gillespie v People, 188 Ill. 176 (1900) People ex rel. Akin v Butler Street Foundry Co., 201 Ill. 236 (1903) Matthews v People, 202 Ill. 389 (1903) Kellyville Coal Co. v Harrier, 207 Ill. 624 (1904) Starne v People, 222 Ill. 189 (1906) Massie v Cessna, 239 Ill. 352 (1909) Josma v Western Steel Car & Foundry Co., 249 Ill. 508 (1911) Of these fourteen cases, there were no dissents in twelve. There was one dissent in the case of Starne v People, and there two dissents in the case of Matthews v People. The Starne case may be open to criticism, but perhaps its chief effect was not to defeat a particular type of legislation but to make necessary a bad form of draftsmanship in subsequent legislation enacted to accomplish the purpose sought by the statute there involved. Comments upon proposals. The plans stated above proceed upon the assumption that the power to declare laws unconstitutional will remain, and it seems that this assumption is one which must be made at the present time. Some of these proposals seek to meet conditions which are incidental to the power of declaring laws unconstitutional, and to make that power to some extent more effective. Others seek definitely to limit the power, and to restrict the authority of the court in passing upon the validity of legislation. The proposal has been made, of course, that the authority of the courts to declare laws unconstitutional should be abolished, and such a proposal, together with a good deal of useful information, will be found in a report recently presented to the American Federation of Labor.14 14 Study and Report for American Federation of Labor upon Judicial Control over Legislatures as to Constitutional Questions, by Jackson H. Ralston, Washington, 1919. Proposals to require an extraordinary majority to declare a law unconstitutional and to leave the scope of the state's police power to the final determination of the legislature were discussed and rejected by the Massachusetts constitutional convention in 1918. Debates I, 453, 851. With respect to the problem here under discussion, it should be suggested that some person or body must finally interpret the constitution. The proposal made by Mr. Ralston would take away from state courts the right to declare invalid acts of state legislatures and from the federal courts the right to declare invalid acts of Congress, leaving to the courts, subject to final review by the United States supreme court, a power to declare state legislative acts invalid as in conflict with the federal constitution, laws or treaties, requiring that courts in such cases should hold statutes invalid only upon the concurrence of three-fourths of their members. For the proper working of the federal system, it would, of course, be necessary that some body pass upon the relationship between federal and state powers, and probably those opposed to the general power of the courts would agree that the United States supreme court has, on the whole, performed efficiently the task of preserving the balance between the national and the state governments under the constitution of the United States. Aside from the construction of federal powers as against the states, Mr. Ralston's proposal would leave to congress the final determination of its own powers and to the state legislatures the final determination of their powers, assimilating these legislatures to the legislatures of most of the other countries in the world.15 However, in connection with such a proposal, it must be borne in mind that this power has been a rather essential part of the American governmental system for nearly 150 years. It is assumed that in this country the courts will remain the bodies to interpret finally the meaning of constitutional texts, even though some limitation may be placed upon them in the performance of this function. The problem of constitutional construction involves much the same type of function as that of statutory construction, and constructions must be given if language is vague or uncertain, as constitutional language is sometime apt to be, although perhaps it may be said that many questions of construction arise not because of any indefiniteness in language, but because changed conditions have brought up problems of which the framers of the constitution could not have thought. A complex constitution makes necessary the prompt settlement if possible of numerous technical questions of construction, and when such questions are once settled a constitution is us. 15 In Australia, Argentina, Greece, Norway and Roumania, the courts enforce constitutional limitations in much the same manner as they do in the United States, although cases arise much less frequently than they do with In Switzerland, the federal court enforces against cantonal legislation the guarantees in both cantonal and federal constitutions. For Canada a judicial control exists in order to keep the dominion and provincial legislatures within the limits of the British North America Act. In a number of federal governments (Brazil, Mexico, and Switzerland) there exists impliedly or expressly a judicial power to disregard state laws which conflict with the federal constitution or laws, but this may be regarded more appropriately as a control of superior over inferior legislation, rather than a true judicial control over legislation. The constitutions of Portugal, Nicaragua, Honduras, Cuba, Haiti and Venezuela expressly grant to the courts power to disregard laws conflicting with the constitutions, and in several other Latin-American constitutions there are provisions which imply a similar power. Too much reliance, however, must not be placed upon the declarations in some of these constitutions. To complete the list it may be added that in Liberia the courts exercise such a power and that a judicial power over legislation was asserted in the Transvaal in 1896. |