Hastily formed as most of these constitutions were, and the first of their kind, it would have been strange indeed if some of them had not proved to be very defective. Such was the case. The public dissatisfaction is shown by the early action of States either to amend their constitutions or to form new ones. South Carolina adopted a new one in 1778, New Hampshire in 1784, Delaware in 1792, Georgia in 1798, Pennsylvania in 1792, while Maryland amended hers the next year after its adoption. Measured by this test, the constitution of Massachusetts was the most perfect of all; it was not amended until 1820 and is still in force. New York adopted a second constitution in 1801, Virginia in 1830, North Carolina in 1834, New Jersey in 1844. Justine 660. The Later Constitutions. As a class, the later constitutions differ from the earlier ones in several features, of which the following may be particularized: 1. They are framed by constitutional conventions, or constituent assemblies, duly convoked and elected for that purpose. The first constitutions were all revolutionary acts. They are submitted to the people for ratification by a popular vote. This had become the uniform rule until broken by Mississippi in 1890. 3. They are much more elaborate and complete. This is partly due to the increased complexity of government growing out of the increased complexity of society. For the rest, it may be attributed to popular jealousy of authority, and to a desire so to limit and qualify the powers of government as to prevent abuses. a convention of delegates chosen by the people met at Cambridge for the purpose of drafting a constitution; it seems to have adjourned in November, and then to have met March 2, 1780, when it passed a resolution submitting to the people the draft of constitution that had been drawn up. Between that date and June 14 following, an election was held; and on the 15th of that month the convention resolved "that the people of the State of Massachusetts Bay have accepted the constitution as it stands in the printed form submitted to their revision." I have assumed that the constitution took effect with the adoption of this resolution. 661. Amendments.-The State constitutions make provision for their own amendment. This involves the two steps of proposal and ratification. The first step is taken by the Legislature; in some States a majority, in some three-fifths, and in some two-thirds of all the members-elect are necessary for this purpose. A few States require the concurrence of two successive Legislatures. a rule, the ratification is by the popular vote; in some States a majority of all the votes cast at the election is required; in some, a majority of those cast on this particular question suffices. The Legislature of Rhode Island must approve an amendment by a two-thirds' vote of each branch after the people have approved it. In Delaware the ratification is given by the Legislature succeeding the one that proposed the amendment. The Legislature of New Hampshire cannot propose amendments, but it may submit to the people the question of calling a convention to do so. 662. Constitutional Conventions.-Many of the constitutions provide for calling such conventions. Some Legislatures are required to submit that question to the people at stated periods: In New Hampshire, once in 7 years; in Iowa, once in 10; in Michigan, once in 16; and in New York, Ohio, Maryland, and Virginia, once in 20. All constitutions framed by such conventions, and all amendments proposed by them, as well as those proposed by Legislatures, must then be subjected to the constitutional method of ratification. 663. Limitations of the State Governments.-As stated in Chapter XII, the State governments possess inherent powers; the Federal Government, delegated powers. It must also be borne in mind that the American people did four things when they ordained the National Constitution: Delegated certain powers of government to the Union; Prohibited certain powers to the Union; Prohibited certain powers to the States; Reserved all powers that they had not delegated to the Union, or prohibited to the States, to the States, or the people,—thus making the States their residuary legatees. Still it must not be supposed that the State governments possess or exercise all the reserved powers. The reservation is made to the people of the States, not to the State governments; and the people, in the State constitutions, deny such reserved powers to their State governments as they see fit. From the first, the people have withheld powers from the governments that they have constituted, and in later years they have withheld more such powers than formerly. Thus, the States might establish State churches, deny to citizens the right of petition, or the right to bear arms, and unduly limit, or even deny, the right of trial by jury; but the State constitutions carefully guard these points and many more besides. For example, the Pennsylvania bill of rights closes with this declaration: "To guard against transgression of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate.” 664. Scope of the Present Inquiry. It is neither possible nor desirable in the present work to examine in detail all the forty-five State constitutions, or even any one of them. The full discussion of the National Constitution renders that superfluous. A general statement of the nature and operation of the State governments, with some account of the principal variations, will amply suffice for the present purpose. 665. Three Departments.-The States all preserve the old three-fold division of governmental powers and departments, and it constitutes the main frame work of their constitutions. The National Constitution, by devolving certain duties upon the Legislatures and Governors, makes this three-fold division necessary; a State without it would not have a republican form of government within its meaning. 666. Assumptions of the Constitution.-The Na tional Constitution assumes, and so indirectly ordains, various features of the State Governments. Moreover, by assuming the existence of these features and by devolving upon Legislatures, Governors, and Judges certain definite duties, the Constitution makes them, de facto, a part of the machinery of the National Government, and so declares, by implication, that they shall continue. No State, therefore, could abolish its Legislature, Governor, or Courts of Law. To do so would bring it into collison with the National authority. And this also is a pledge that the government of every State must be republican. 667. Bills of Rights. Most if not all of the State constitutions contain, frequently as a preface, a series of propositions bearing this name, or at least answering to this description. The practice dates from Revolutionary times, as has been explained in a previous chapter. Some of these propositions are merely general political maxims, or abstract statements of rights, first copied from their English prototypes, but many of them are special and concrete. It is in these bills that many of the limitations imposed by the people of the States upon their governments are enumerated. Mr. Bryce observes, and very properly, a growing tendency on the part of the people to place less reliance upon general maxims, and more reliance upon specific declarations. 668. Fluctuations of State Constitutional Law. 1-Upon the whole, the State constitutions have proved to be much less fixed and stable than the Federal Constitution. In 1860 the Union consisted of 34 States; and only 5 of the number, and these ranging only from 3 to 15 years old, still retained their first constitutions unchanged. All the others had not indeed thrown aside their first constitutions, but they had all either thrown them aside or subjected them to more or less amendment, and often to repeated amendment. Up to that time 69 complete constitutions and 101 different sets of amendments had been promulgated. From 1860 to 1887 the new constitutions 1 Jameson, The Constitutional Convention, Chap. VII.; Hitchcock, American State Constitutions, pp. 15-17; Bryce, The American Commonwealth, Vol. I, pp. 456, 457.. were 35, including the first ones of the new States; while the number of amendments longer and shorter, counting as one amendment whatever was adopted at one time, were 114. In other words, from 1776 to 1886 we count 104 complete constitutions and 215 amendments. This is not counting constitutions and amendments proposed that failed to receive ratification. In the last ten years of the period, 6 complete constitutions and 28 amendments were rejected by the popular vote. Previous to 1873, as many as 152 conventions had sat for the purpose of framing, devising, or ratifying constitutions. Six new States have been admitted to the Union since 1887; several of the old States have adopted new constitutions, and many more have adopted amendments, so that the process of elaborating State Constitutional Law shows no sign of coming to an end. It must be said that this process goes on much more rapidly in some sections of the country than in others. This is particularly true of the South and West. Louisiana and Georgia have each had 6 Constitutions; Virginia and South Carolina, 5; Pennsylvania, 4; Ohio and Michigan, 2; Illinois, 3; New York and Delaware, 3; Rhode Island, Connecticut, and Maine, one each; New Hampshire and Vermont, two each; Massachusetts, one. Still, some of the constitutions that have stood longest have been considerably, and often materially, changed by amendment. The causes of this continued flux of State Constitutional Law are not far to seek. The State constitutions are regarded with much less reverence than the Federal Constitution; the machinery that is provided for their amendment is much less cumbersome and much more easily operated; while State opinion often depends directly upon new communities or communities where society has never assumed as regular and settled a form as it has in the whole country taken together. The increasing size of the State constitutions is well shown by the amount of space that they occupy in Poore's ample pages. The several constitutions of Virginia, beginning with 1776 and ending with 1870, occupy 4, 7, 18, and 25 pages each. Pennsylvania has grown from 8 pages to 23; Texas, from 10 to 24; Illinois, from 10 to 25. The New Hampshire constitution of 1776 contains 600 words; those of Missouri and South Dakota at the present time, 26,000 words. |