Front Page Titles (by Subject) chapter 37: State Constitutions - The American Commonwealth, vol. 1
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chapter 37: State Constitutions - Viscount James Bryce, The American Commonwealth, vol. 1 
The American Commonwealth, with an Introduction by Gary L. McDowell, 2 vols (Indianapolis: Liberty Fund, 1995).
Part of: The American Commonwealth, 2 vols.
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The government of each state is determined by and set forth in its constitution, a comprehensive fundamental law, or rather group of laws included in one instrument, which has been directly enacted by the people of the state, and is capable of being repealed or altered, not by their representatives, but by themselves alone. As the Constitution of the United States stands above Congress and out of its reach, so the constitution of each state stands above the legislature of that state, cannot be varied in any particular by the state legislature, and involves the invalidity of any statute passed by the legislature which is found to be inconsistent with it.
The state constitutions are the oldest things in the political history of America, for they are the continuations and representatives of the royal colonial charters, whereby the earliest English settlements in America were created, and under which their several local governments were established, subject to the authority of the English Crown and ultimately of the British Parliament. But, like most of the institutions under which English-speaking peoples now live, they have a pedigree which goes back to a time anterior to the discovery of America itself. It begins with the English trade guild of the Middle Ages, itself the child of still more ancient corporations, dating back to the days of imperial Rome, and formed under her imperishable law. Charters were granted to merchant guilds in England as far back as the days of King Henry I. In 1463, Edward IV gave an elaborate one to the merchant adventurers trading with Flanders. In it we may already discern the arrangements which are more fully set forth in two later charters of greater historical interest, the charter of Queen Elizabeth to the East India Company in 1599, and the charter of Charles I to the “Governor and Company of the Mattachusetts Bay in Newe-England” in 1628. Both these instruments establish and incorporate trading companies, with power to implead and be impleaded, to use a common seal, to possess and acquire lands, tenements and hereditaments, with provisions for the making of ordinances for the welfare of the company. The Massachusetts Charter creates a frame of government consisting of a governor, deputy-governor, and eighteen assistants (the term still in use in many of the London city guilds), and directs them to hold four times a year a general meeting of the company, to be called the “greate and generall Court,” in which general court “the Governor or deputie Governor, and such of the assistants and Freemen of the Company as shall be present, shall have full power and authority to choose other persons to be free of the Company, and to elect and constitute such officers as they shall thinke fitt for managing the affaires of the said Governor and Company, and to make Lawes and Ordinances for the Good and Welfare of the saide Company, and for the Government and Ordering of the saide Landes and Plantasion, and the People inhabiting and to inhabite the same, soe as such Lawes and Ordinances be not contrary or repugnant to the Lawes and Statuts of this our realme of England.” In 1691, the charter of 1628 having been declared forfeited in 1684, a new one was granted by King William and Queen Mary, and this instrument, while it retains much of the language and some of the character of the trade guild charter, is really a political frame of government for a colony. The assistants receive the additional title of councillors; their number is raised to twenty-eight; they are to be chosen by the general court, and the general court itself is to consist, together with the governor and assistants, of freeholders elected by towns or places within the colony, the electors being persons with a forty shilling freehold or other property worth £40. The governor is directed to appoint judges, commissioners of oyer and terminer, etc.; the general court receives power to establish judicatories and courts of record, to pass laws (being not repugnant to the laws of England), and to provide for all necessary civil offices. An appeal from the courts shall always be to the King in his privy council. This is a true political constitution.1 Under it the colony was governed, and in the main well and wisely governed, till 1780. Much of it, not merely its terms, such as the name general court, but its solid framework, was transferred bodily to the Massachusetts Constitution of 1780, which is now in force, and which profoundly influenced the Convention that prepared the federal Constitution in 1787. Yet the charter of 1691 is nothing but an extension and development of the trading charter of 1628, in which there already appears, as there had appeared in Edward IV’s charter of 1463, and in the East India Company’s charter of 1599, the provision that the power of lawgiving, otherwise unlimited, should be restricted by the terms of the charter itself, which required that every law for the colony should be agreeable to the laws of England. We have therefore in the three charters which I have named, those of 1463, 1599, and 1628, as well as in that of 1691, the essential and capital characteristic of a rigid or supreme constitution—viz., a frame of government established by a superior authority, creating a subordinate lawmaking body, which can do everything except violate the terms and transcend the powers of the instrument to which it owes its own existence. So long as the colony remained under the British Crown, the superior authority, which could amend or remake the frame of government, was the British Crown or Parliament. When the connection with Britain was severed, that authority passed over, not to the state legislature, which remained limited, as it always had been, but to the people of the now independent commonwealth, whose will speaks through what is now the state constitution, just as the will of the Crown or of Parliament had spoken through the charters of 1628 and 1691.
I have taken the case of Massachusetts as the best example of the way in which the trading company grows into a colony, and the colony into a state. But some of the other colonies furnish illustrations scarcely less apposite. The oldest of them all, the acorn whence the oak of English dominion in America has sprung, the colony of Virginia, was, by the second charter, of 1609, established under the title of “The Treasurer and Company of Adventurers and Planters of the City of London for the first colony in Virginia.” 2
Within the period of ten years, under the last of the Tudors and the first of the Stuarts, two trading charters were issued to two companies of English adventurers. One of these charters is the root of English title to the East and the other to the West. One of these companies has grown into the Empire of India; the other into the United States of North America. If England had done nothing else in history, she might trust for her fame to the work which these charters began. And the foundations of both dominions were laid in the age which was adorned by the greatest of all her creative minds, and gave birth to the men who set on a solid basis a frame of representative government which all the free nations of the modern world have copied.
When, in 1776, the thirteen colonies threw off their allegiance to King George III, and declared themselves independent states, the colonial charter naturally became the state constitution.3 In most cases it was remodelled, with large alterations, by the revolting colony. But in three states it was maintained unchanged (except, of course, so far as Crown authority was concerned), viz., in Massachusetts till 1780, in Connecticut till 1818, and in Rhode Island till 1842.4 The other thirty-five states admitted to the Union in addition to the original thirteen, have all entered it as organized self-governing communities, with their constitutions already made by their respective peoples. Each act of Congress which admits a new state admits it as a subsisting commonwealth, sometimes empowering its people to meet and enact a constitution for themselves (subject to conditions mentioned in the act), sometimes accepting and confirming a constitution already made by the people.5 Congress may impose conditions which the state constitution must fulfil; and in admitting the eight newest states has affected to retain the power of maintaining these conditions in force. But the authority of the state constitutions does not flow from Congress, but from acceptance by the citizens of the states for which they are made. Of these instruments, therefore, no less than of the constitutions of the thirteen original states, we may say that although subsequent in date to the federal Constitution, they are, so far as each state is concerned, de jure prior to it. Their authority over their own citizens is nowise derived from it.6 Nor is this a mere piece of technical law. The antiquity of the older states as separate commonwealths, running back into the heroic ages of the first colonization of America and the days of the Revolutionary War, is a potent source of the local patriotism of their inhabitants, and gives these states a sense of historic growth and indwelling corporate life which they could not have possessed had they been the mere creatures of the federal government.
The state constitutions of America well deserve to be compared with those of the self-governing British colonies. But one remarkable difference must be noted here. The constitutions of British colonies have all proceeded from the Imperial Parliament of the United Kingdom,7 which retains its full legal power of legislating for every part of the British dominions. In many cases a colonial constitution provides that it may be itself altered by the colonial legislature, of course with the assent of the Crown; but inasmuch as in its origin it is a statutory constitution, not self-grown, but planted as a shoot by the Imperial Parliament at home, Parliament may always alter or abolish it. Congress, on the other hand, has no power to alter a state constitution. And whatever power of alteration has been granted to a British colony is exercisable by the legislature of the colony, not, as in America, by the citizens at large.
The original constitutions of the states, whether of the old thirteen or of those subsequently admitted, have been in nearly every case (except those of the twelve newest states) subsequently recast, in some instances, five, six, or even seven times, as well as amended in particular points. Thus constitutions of all dates are now in force in different states, from that of Massachusetts, enacted in 1780, but largely amended since, to that of Arizona enacted in 1912.
The constitutions of the revolutionary period were in a few instances enacted by the state legislature, acting as a body with plenary powers, but more usually by the people acting through a convention, i.e., a body specially chosen by the voters at large for the purpose, and invested with full powers, not only of drafting, but of adopting the instrument of government.8 Since 1835, when Michigan framed her constitution, the invariable practice in the Northern states has been for the convention, elected by the voters, to submit in accordance with the precedents set by Massachusetts in 1780, and by Maine in 1820, the draft constitution framed by it to the citizens of the state at large, who vote upon it yes or no. They usually vote on it as a whole, and adopt or reject it en bloc, but sometimes provision is made for voting separately on some particular point or points. In the Southern states the practice has varied. In 1890, Mississippi enacted a new constitution by a convention alone; and in Kentucky (in 1891), after the draft constitution which the convention had prepared had been submitted to and accepted by a popular vote (as provided by the statute which summoned the convention), the convention met again and made some alterations on which, strange to say, the people have not been since consulted.9 Alabama in 1901 submitted her new constitution to the people. But South Carolina in 1895 and Louisiana in 1898 allowed conventions to adopt constitutions, and Virginia in 1902 followed their example, although the statute under which the constitutional convention was acting had directed that the revised constitution should be “submitted to the qualified voters.”
The people of a state retain forever in their hands, altogether independent of the national government, the power of altering their constitution. When a new constitution is to be prepared, or the existing one amended, the initiative usually comes from the legislature, which (either by a simple majority, or by a two-thirds majority, or by a majority in two successive legislatures, as the constitution may in each instance provide) submits the matter to the voters in one of two ways. It may either propose to the people certain specific amendments,10 or it may ask the people to decide by a direct popular vote on the propriety of calling a constitutional convention to revise the whole existing constitution. In the former case the amendments suggested by the legislature are directly voted on by the citizens; in the latter the legislature, so soon as the citizens have voted for the holding of a convention, provides for the election by the people of this convention. When elected, the convention meets, sets to work, goes through the old constitution, and prepares a new one, which is then presented to the people for ratification or rejection at the polls. Only in the little state of Delaware is the function of amending the constitution still left to the legislature without the subsequent ratification of a popular vote, subject, however, to the provision that changes must be passed by two successive legislatures, by a two-thirds majority of the members elected to each house, and must have been put before the people at the election of members for the second.11 Some states provide for the submission to the people at fixed intervals, of seven, ten, sixteen, or twenty years, of the propriety of calling a convention to revise the constitution, and a few allow a prescribed percentage of the voters to propose amendments by their own initiative. Be it observed, however, that whereas the federal Constitution can be amended only by a vote of three-fourths of the states, a constitution can in nearly every state be changed by a bare majority of the citizens voting at the polls.12 Hence we may expect to find, and shall find, that these instruments are altered more frequently and materially than the federal Constitution has been. Between 1889 and 1908 only two states, Tennessee and Wyoming, abstained from altering their constitutions (Wyoming’s was enacted in 1889) and in those twenty years California altered hers forty-two times. Between 1892 and 1908 she adopted forty-seven amendments.
The tendency of late years has been to make the process of alteration quicker, for recent constitutions generally provide that one legislature, not two successive legislatures, may propose an amendment, which shall at once take effect if accepted by the people,13 and also to make it easier, for some of the Western states now allow the people to start the process.
A state constitution is not only independent of the central national government (save in certain points already specified), it is also the fundamental organic law of the state itself. The state exists as a commonwealth by virtue of its constitution, and all state authorities, legislative, executive, and judicial, are the creatures of, and subject to, the state constitution.14 Just as the president and Congress are placed beneath the federal Constitution, so the governor and houses of a state are subject to its constitution, and any act of theirs done either in contravention of its provisions, or in excess of the powers it confers on them, is absolutely void. All that has been said in preceding chapters regarding the functions of the courts of law where an act of Congress is alleged to be inconsistent with the federal Constitution, applies equally where a statute passed by a state legislature is alleged to transgress the constitution of the state, and of course such validity may be contested in any court, whether a state court or a federal court, because the question is an ordinary question of law, and is to be solved by determining whether or no a law of inferior authority is inconsistent with a law of superior authority. Whenever in any legal proceeding before any tribunal, either party relies on a state statute, and the other party alleges that this statute is ultra vires of the state legislature, and therefore void, the tribunal must determine the question just as it would determine whether a bye-law made by a municipal council or a railway company was in excess of the lawmaking power which the municipality or the company had received from the higher authority which incorporated it and gave it such legislative power as it possesses. But although federal courts are fully competent to entertain a question arising on the construction of a state constitution, their practice is to follow the precedents set by any decision of a court of the state in question, just as they would follow the decision of a French court in determining a point of law. Each state must be assumed to know its own law better than a stranger can; but also that the supreme court of a state is the authorized exponent of the mind of the people who enacted its constitution.
A state constitution is really nothing but a law made directly by the people voting at the polls upon a draft submitted to them. The people when they so vote act as a primary and constituent assembly, just as if they were all summoned to meet in one place like the folkmoots of our Teutonic forefathers. It is only their numbers that prevent them from so meeting in one place, and oblige the vote to be taken at a variety of polling places. Hence the enactment of a constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republics of antiquity, and has lasted till now in some of the cantons of Switzerland.15
The importance of this character of a state constitution as a popularly-enacted law, overriding every minor state law, becomes all the greater when the contents of these constitutions are examined. Europeans conceive of a constitution as an instrument, usually a short instrument, which creates a frame of government, defines its departments and powers, and declares the “primordial rights” of the subject or citizen as against the rulers. An American state constitution does this, but does more; and in most cases, infinitely more. It deals with a variety of topics which in Europe would be left to the ordinary action of the legislature, or of administrative authorities; and it pursues these topics into a minute detail hardly to be looked for in a fundamental instrument. Some of these details will be mentioned presently. Meantime I will sketch in outline the frame and contents of the more recent constitutions, reserving for next chapter remarks on the differences of type between those of the older and those of the newer states.
A normal constitution consists of five parts:
The bill of rights is historically the most interesting part of these constitutions, for it is the legitimate child and representative of Magna Charta, and of those other declarations and enactments, down to the Bill of Rights of the Act of 1 William and Mary, session 2, by which the liberties of Englishmen have been secured. Most of the thirteen colonies when they asserted their independence and framed their constitutions inserted a declaration of the fundamental rights of the people, and the example then set has been followed by the newer states, and, indeed, by the states generally in their most recent constitutions. Considering that all danger from the exercise of despotic power upon the people of the states by the executive has long since vanished, their executive authorities being the creatures of popular vote and nowadays rather too weak than too strong, it may excite surprise that these assertions of the rights and immunities of the individual citizen as against the government should continue to be repeated in the instruments of today. A reason may be found in the remarkable constitutional conservatism of the Americans, and in their fondness for the enunciation of the general maxims of political freedom. But it is also argued that these declarations of principle have a practical value, as asserting the rights of individuals and of minorities against arbitrary conduct by a majority in the legislature, which might, in the absence of such provisions, be tempted at moments of excitement to suspend the ordinary law and arm the magistrates with excessive powers. They are therefore, it is held, still safeguards against tyranny; and they serve the purpose of solemnly reminding a state legislature and its officers of those fundamental principles which they ought never to overstep.16 Although such provisions certainly do restrain a state legislature in ways which the British Parliament would find inconvenient, few complaints of practical evils thence arising are heard.
A general notion of these bills of rights may be gathered from that enacted for itself in 1907 by the new state of Oklahoma, printed in the Appendix to this volume. I may mention, in addition, a few curious provisions which occur in some of them.
All provide for full freedom of religious opinion and worship, and for the equality before the law of all religious denominations and their members; and many forbid the establishment of any particular church or sect, and declare that no public money ought to be applied in aid of any religious body or sectarian institution.17 But Delaware holds it to be “the duty of all men frequently to assemble for public worship”; and Vermont adds that “every sect or denomination of Christians ought to observe the Sabbath or Lord’s Day.” And thirteen states declare that the provisions for freedom of conscience are not to be taken to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state,18 Mississippi adding (1890) that they shall not be construed to exclude the Bible from use in schools, and Idaho, Montana, and Utah (states familiar with Mormonism), denouncing bigamy and polygamy as crimes to be made punishable.
Louisiana (Constitution of 1898) declares that “all government of right originates with the people, is founded on their will alone, and is instituted solely for the good of the whole. Its only legitimate end is to secure justice to all, preserve peace, and promote the interest and happiness of the people.”
A large majority of the states declare that “all men have a natural, inherent, and inalienable right to enjoy and defend life and liberty”; and all of these, except the melancholy Missouri, add, the “natural right to pursue happiness.”
Most declare that all men have “a natural right to acquire, possess, and protect property,” while Arkansas and Kentucky are so penetrated with the importance of this right that they declare it to be “before and higher than any constitutional sanction.”
Mississippi and Louisiana (Constitutions of 1868) provided that “the right of all citizens to travel upon public conveyances shall not be infringed upon nor in any manner abridged.” Both states have now dropped this injunction.19
Kentucky (Constitution of 1891) lays down that “absolute arbitrary power over the lives, liberty, and property of freemen exists nowhwere in a republic, not even in the largest majority. All men when they form a social compact are equal. All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, and security, and the protection of property. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may deem proper.” 20
All in one form or another secure the freedom of writing and speaking opinions; and some add that the truth of a libel may be given in evidence.21
Nearly all secure the freedom of public meeting and petition. Considering that these are the last rights likely to be infringed by a state government, it is odd to find Florida in her Constitution of 1886 providing that “the people shall have the right to assemble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances,” and Kentucky in 1891 equally concerned to secure this right.
Many provide that no ex post facto law, nor law impairing the obligation of a contract, shall be passed by the state legislature; and that private property shall not be taken by the state without just compensation.
Many forbid the creation of any title of nobility.
Many declare that the right of citizens to bear arms shall never be denied, a provision which might be expected to prove inconvenient where it was desired to check the habit of carrying revolvers. Tennessee therefore (Constitution of 1870) prudently adds that “the legislature shall have power to regulate the wearing of arms, with a view to prevent crime.” So also Texas, where such a provision is certainly not superfluous. And eight others22 allow the legislature to forbid the carrying of concealed weapons.
Several forbid armed men to be brought into the state “for the suppression of domestic violence,” in order to prevent employers from resorting to this means of protecting property in case of labour disputes accompanied by violence.
Some declare that the estates of suicides shall descend in the ordinary course of law.
Most provide that conviction for treason shall not work corruption of blood nor forfeiture of estate.
Eight forbid white and coloured children to be taught in the same public schools, while Wyoming provides that no distinction shall be made in the public schools on account of sex, race, or colour.
Many declare the right of trial by jury to be inviolate, even while permitting the parties to waive it. Several states empower a jury in civil cases to render a verdict by a three-fourths or two-thirds majority, and five states permit it to consist of less than twelve.
Some forbid imprisonment for debt, except in case of fraud, and secure the acceptance of reasonable bail, except for the gravest charges.23
Several declare that “perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.”
Many forbid the granting of any hereditary honours, privileges, or emoluments.
North Carolina declares that “as political rights and privileges are not dependent upon or modified by property, therefore no property qualification ought to affect the right to vote or hold office”; and also, “secret political societies are dangerous to the liberties of a free people, and should not be tolerated.”
Massachusetts sets forth, as befits a Puritan state, high moral views: “A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government. The people ought consequently to have a particular attention to all those principles in the choice of their officers and representatives, and they have a right to require of their law-givers and magistrates an exact and constant observance of them.”
South Dakota and Wyoming provide that aliens shall have the same rights of property as citizens. Montana confers this benefit as respects mining property, while Washington prohibits the ownership of land by aliens, except for mining purposes. New York in her (now superseded) Constitution of 1846 declared, “All lands within the State are declared to be allodial.”
North Dakota (1889) enacts: “Every citizen shall be free to obtain employment wherever possible, and any person, corporation, or agent thereof, maliciously interfering or hindering in any way any citizen from obtaining, or enjoying employment already obtained, from any other corporation or person, shall be deemed guilty of a misdemeanor.”
Maryland (Constitution of 1867) declares that “a long continuance in the executive departments of power or trust is dangerous to liberty; a rotation, therefore, in those departments is one of the best securities of permanent freedom.” She also pronounces all gifts for any religious purpose (except of a piece of land not exceeding five acres for a place of worship, parsonage, or burying-ground) to be void unless sanctioned by the legislature.
Montana and Idaho declare the use of lands for constructing reservoirs, watercourses, or ways for the purposes of mining or irrigation, to be a public use, subject to state regulation.
Oklahoma provides that “the right of the State to engage in any occupation or business for public purposes shall be be denied or prohibited” save that its agricultural enterprises are to be only “for scientific, educational or charitable purposes.”
These instances, a few out of many, may suffice to show how remote from the common idea of a bill of rights, are some of the enactments which find a place under that heading. The constitution makers seem to have inserted here such doctrines or legal reforms as seemed to them matters of high import or of wide application, especially when they could find no suitable place for them elsewhere in the instrument.
Of the articles of each state constitution which contain the frame of state government it will be more convenient to speak in the chapters which describe the mechanism and character of the governments and administrative systems of the several states. I pass on therefore to what have been classed as the miscellaneous provisions. These are of great interest as revealing the spirit and tendencies of popular government in America, the economic and social condition of the country, the mischiefs that have arisen, the remedies applied to these mischiefs, the ideas and beliefs of the people in matters of legislation.
Among such provisions we find a great deal of matter which is in no distinctive sense constitutional law, but general law, e.g., administrative law, the law of judicial procedure, the ordinary private law of family, inheritance, contract, and so forth; matter therefore which seems out of place in a constitution because fit to be dealt with in ordinary statutes. We find minute provisions regarding the management and liabilities of banking companies, of railways, or of corporations generally; regulations as to the salaries of officials, the quorum of courts sitting in banco, the length of time for appealing, the method of changing the venue, the publication of judicial reports; detailed arrangements for school boards and school taxation (with rules regarding the separation of white and black children in schools), for a department of agriculture, a canal board, or a labour bureau; we find a prohibition of lotteries, of polygamy, of bribery, of lobbying, of the granting of liquor licenses, of usurious interest on money, an abolition of the distinction between sealed and unsealed instruments, a declaration of the extent of a mechanic’s lien for work done. We even find the method prescribed in which stationery and coals for the use of the legislature shall be contracted for, and provisions for fixing the rates which may be charged for the storage of corn in warehouses. The framers of these more recent constitutions have in fact neither wished nor cared to draw a line of distinction between what is proper for a constitution and what ought to be left to be dealt with by the state legislature. And, in the case of three-fourths at least of the states, no such distinction now, in fact, exists.
How is this confusion to be explained? Four reasons may be suggested.
The Americans, like the English, have no love for scientific arrangement. Although the constitutions have been drafted by lawyers, and sometimes by the best lawyers of each state, logical classification and discrimination have not been sought after.
The people found the enactment of a new constitution a convenient opportunity for enunciating doctrines they valued and carrying through reforms they desired. It was a simpler and quicker method than waiting for legislative action, so, when there was a popular demand for the establishment of an institution, or for some legal change, this was shovelled into the new constitution and enacted accordingly.
The peoples of the states have come to distrust their respective legislatures. Hence they desire not only to do a thing forthwith and in their own way rather than leave it to the chance of legislative action, but to narrow as far as they conveniently can (and sometimes farther) the sphere of the legislature.
There is an unmistakable wish in the minds of the people to act directly rather than through their representatives in legislation. The same conscious relish for power which leads some democracies to make their representatives mere delegates, finds a further development in passing by the representatives, and setting the people itself to make and repeal laws.
Those who have read the chapters describing the growth and expansion of the federal Constitution, will naturally ask how far the remarks there made apply to the constitutions of the several states.
These instruments have less capacity for expansion, whether by interpretation or by usage, than the Constitution of the United States: first, because they are more easily, and therefore more frequently, amended or recast; secondly, because they are far longer, and go into much more minute detail. The federal Constitution is so brief and general that custom must fill up what it has left untouched, and judicial construction evolve the application of its terms to cases they do not expressly deal with. But the later state constitutions are so full and precise that they need little in the way of expansive construction, and leave comparatively little room for the action of custom.
The rules of interpretation are in the main the same as those applied to the federal Constitution. One important difference must, however, be noted, springing from the different character of the two governments. The national government is an artificial creation, with no powers except those conferred by the instrument which created it. A state government is a natural growth, which prima facie possesses all the powers incident to any government whatever. Hence, if the question arises whether a state legislature can pass a law on a given subject, the presumption is that it can do so: and positive grounds must be adduced to prove that it cannot. It may be restrained by some inhibition either in the federal Constitution, or in the constitution of its own state. But such inhibition must be affirmatively shown to have been imposed, or, to put the same point in other words, a state constitution is held to be, not a document conferring defined and specified powers on the legislature, but one regulating and limiting that general authority which the representatives of the people enjoy ipso jure by their organization into a legislative body.
“It has never been questioned that the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where they are restrained by written Constitutions. That must be conceded to be a fundamental principle in the political organization of the American States. We cannot well comprehend how, upon principle, it could be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States or of the particular State in question.” 24
“The people, in framing the Constitution, committed to the legislature the whole law-making powers of the State which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.” 25
It must not, however, be supposed from these dicta that even if the states were independent commonwealths, the federal government having disappeared, their legislatures would enjoy anything approaching the omnipotence of the British Parliament, “whose power and jurisdiction is,” says Sir Edward Coke, “so transcendent and absolute that it cannot be confined, either for persons or causes, within any bounds.” “All mischiefs and grievances,” adds Blackstone, “operations and remedies that transcend the ordinary course of the laws are within the reach of this extraordinary tribunal.” Parliament being absolutely sovereign, can command, or extinguish and swallow up the executive and the judiciary, appropriating to itself their functions. But in America, a legislature is a legislature and nothing more. The same instrument which creates it creates also the executive governor and the judges. They hold by a title as good as its own. If the legislature should pass a law depriving the governor of an executive function conferred by the constitution, that law would be void. If the legislature attempted to interfere with the jurisdiction of the courts, their action would be even more palpably illegal and ineffectual.26
The executive and legislative departments of a state government have of course the right and duty of acting in the first instance on their view of the meaning of the constitution. But the ultimate expounder of that meaning is the judiciary; and when the courts of a state have solemnly declared the true construction of any provision of the constitution, all persons are bound to regulate their conduct accordingly. As was observed in considering the functions of the federal judiciary (Chapter 23), this authority of the American courts is not in the nature of a political or discretionary power vested in them; it is a necessary consequence of the existence of a fundamental law superior to any statute which the legislature may enact, or to any right which a governor may conceive himself to possess.27 To quote the words of an American decision:
“In exercising this high authority the judges claim no judicial supremacy; they are only the administrators of the public will. If an Act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the Act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law.”
It is a well-established rule that the judges will always lean in favour of the validity of a legislative act; that if there be a reasonable doubt as to the constitutionality of a statute they will solve that doubt in favour of the statute; that where the legislature has been left a discretion they will assume the discretion to have been wisely exercised; that where the construction of a statute is doubtful, they will adopt such construction as will harmonize with the constitution, and enable it to take effect. So it has been well observed that a man might with perfect consistency argue as a member of a legislature against a bill on the ground that it is unconstitutional, and after having been appointed a judge, might in his judicial capacity sustain its constitutionality. Judges must not inquire into the motives of the legislature, nor refuse to apply an act because they may suspect that it was obtained by fraud or corruption, still less because they hold it to be opposed to justice and sound policy. “A court cannot declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guaranteed or protected, by the Constitution.28 . . . But when a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it; and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto, is true also as to any part of an Act which is found to be unconstitutional, and which consequently is to be regarded as having never at any time been possessed of legal force.” 29
It may be thought, and the impression will be confirmed when we consider as well the minuteness of the state constitutions as the profusion of state legislation and the inconsiderate haste with which it is passed, that as the risk of a conflict between the constitution and statutes is great, so the inconveniences of a system under which the citizens cannot tell whether their obedience is or is not due to a statute must be serious. How is a man to know whether he has really acquired a right under a statute? How is he to learn whether to conform his conduct to it or not? How is an investor to judge if he may safely lend money which a statute has empowered a community to borrow, when the statute may be itself subsequently overthrown?
To meet these difficulties some state constitutions30 provide that the judges of the supreme court of the state may be called upon by the governor or either house of the legislature to deliver their opinions upon questions of law, without waiting for these questions to arise and be determined in an ordinary lawsuit.31 This expedient seems a good one, for it procures a judicial and nonpartisan interpretation, and procures it at once before rights or interests have been created. But it is open to the objection that the opinions so pronounced by judges are given before cases have arisen which show how in fact a statute is working, and what points it may raise; and that in giving them the judges have not, as in contested lawsuits, the assistance of counsel arguing for their respective clients. And this is perhaps the reason why in most of the states where the provision exists, the judges have declared that they act under it in a purely advisory capacity, and that their deliverances are to be deemed merely expressions of opinion, not binding upon them should the point afterwards arise in a lawsuit involving the rights of parties.32
The highest court of a state may depart from a view it has previously laid down, even in a legal proceeding, regarding the construction of the constitution, that is to say, it has a legal right to do so if convinced that the former view was wrong. But it is reluctant to do so, because such a course unsettles the law and impairs the respect felt for the bench. And there is less occasion for it to do so than in the parallel case of the supreme federal court, because as the process of amending a state constitution is simpler and speedier than that of altering the federal Constitution, a remedy can be more easily applied to any mistake which the state judiciary has committed. This unwillingness to unsettle the law goes so far that state courts have sometimes refused to disturb a practice long acquiesced in by the legislature, which they have nevertheless declared they would have pronounced unconstitutional had it come before them while still new.
 The oldest truly political constitution in America is the instrument called the Fundamental Orders of Connecticut, framed by the inhabitants of Windsor, Hartford, and Wethersfield in 1638, memorable year, when the ecclesiastical revolt of Scotland saved the liberties of England. The government of Connecticut was afterwards regularized by Charles II’s charter of 1662 to “the Governor and Company of the English colony of Connecticut.” The agreement drawn up in the cabin of the Mayflower may perhaps claim to have in it the germs of a government.
I am here tracing only the formal and legal growth of state constitutions. Their democratic spirit and contents are largely due to the ideas with which the theology of the Reformers, and especially of Calvin, had filled the minds of the Puritan emigrants; and the ecclesiastical arrangements the latter set up powerfully influenced those of the nascent political communities.
 The phrase first colony distinguishes what afterwards became the state of Virginia from the more northerly parts of Virginia, afterwards called New England. The second colony was to be Plymouth, one of the two settlements which became Massachusetts.
 Even in declaring herself independent, New Jersey clung to the hope that the mother country would return to wiser counsels, and avert the departure of her children. She added at the end of her constitution of July 2, 1776, the following proviso: “Provided always, and it is the true intent and meaning of this Congress, that if a reconciliation between Great Britain and these colonies should take place, and the latter be taken again under the protection and government of the Crown of Britain, this charter shall be null and void, otherwise remain firm and inviolable.” The truth is that the colonists, till alienated by the behaviour of England, had far more kindly feelings towards her than she had towards them. To them she was the old home, to her they were simply customers. Some interesting illustrations of the views then entertained as to the use of colonies may be found in the famous discussion in the fourth book of Adam Smith’s Wealth of Nations, which appeared in 1776.
 Rhode Island simply passed a statute by her legislature in May 1776, substituting allegiance to the colony for allegiance to the King. Connecticut passed the following statute: “Be it enacted by the Governor and Council and House of Representatives, in general court assembled, that the ancient form of civil government contained in the charter from Charles II, King of England, and adopted by the people of this State, shall be and remain the civil Constitution of this State, under the sole authority of the people thereof, independent of any king or prince whatever; and that this republic is, and shall for ever be and remain, a free, sovereign, and independent State, by the name of the State of Connecticut.” (Three paragraphs follow containing a short “Bill of Rights,” and securing to the inhabitants of any other of the United States the same law and justice as natives of the state enjoyed.) This is all that Connecticut thought necessary. She had possessed, as did Rhode Island also, the right of appointing her own governor, and therefore did not need to substitute any new authority for a royal governor.
 In the Act of 1889 for the admission of North Dakota, South Dakota, Montana, and Washington, and in the Act of 1894 for the admission of Utah, and that of 1906 for the admission of Oklahoma, the former course, in the admission of Idaho and Wyoming in 1890, and of New Mexico and Arizona in 1910, the latter course, was followed.
 In practice Congress can influence the character of a state constitution, because a state whose constitution contains provisions which Congress disapproves may be refused admission. But since the extinction of slavery and completion of the process of reconstruction, occasions for the serious exercise of such a power rarely arise. It was used to compel the seceding states to modify their constitutions so as to get rid of all taint of slavery before their senators and representatives were readmitted to Congress after the war. Of course Congress is not bound to admit a community desiring to be recognized as a state. Utah was kept knocking at the door of the Union for many years, because the nation wished to retain for the purpose of preventing polygamy that full control which can be exercised over a Territory but not over a state. Her admission was accompanied by a prohibition of polygamy. Sometimes a dominant party postpones the admission of a state likely to strengthen by its vote the opposite party; and sometimes, as happened in the cases of Wyoming, Montana, Idaho, and New Mexico, communities whose fitness for statehood was doubtful were admitted for partisan reasons.
 However, though the constitutions of the Canadian and Australian Dominions and of United South Africa were enacted by British statutes of 1867, 1900, and 1909 respectively, all three had been drafted by the colonists.
 In Rhode Island and Connecticut the legislature continued the colonial constitution. In South Carolina a body calling itself the “Provincial Congress” claimed to be the “General Assembly,” or legislature of the colony, and as such enacted the constitution. In the other revolting colonies, except Massachusetts, conventions or congresses enacted the constitution not submitting it to the voters for ratification. In Massachusetts the convention submitted its draft to the voters in 1780, and the voters adopted it, a previous draft tendered by the legislature in 1778 having been rejected.
 Proceedings were taken before the Court of Appeals of Kentucky to determine the validity of these alterations, and the court by a majority upheld them, on the ground, it would seem, that the legislature and executive had treated them as operative. Sed quœre.
 In New Hampshire the legislature has no power to propose amendments, so the local authorities take the sense of the people every seven years as to the need for a revising convention. In some states the legislature can do so only after stated intervals, e.g., of five years.
 Constitution of 1897, which however also provides that the legislature may, by a like majority, submit to popular vote the question of summoning a convention to revise the constitution.
 Sometimes, however, an absolute majority of all the qualified voters is required. In Rhode Island (where the voting is in town and ward meetings) a three-fifths majority is needed, and in South Carolina the ratification of the next elected legislature by a two-thirds majority in each house is necessary. In Delaware the proposal to call a convention must be approved by a majority of all the voters, in Kentucky by at least one-fourth of the total number who voted at the last preceding general election. Delaware having during several years failed in the attempt to amend her constitution (of 1831) by the legislature, fell back, in 1887, on the proposal to hold a constitutional convention, and at last gave herself a new constitution in 1897.
 In the more recent constitutions more than a bare majority of members of each of the two houses of the legislature must agree to propose an amendment, the amendment being in every case ultimately submitted to the people.
 Some details as to the provisions of state constitutions may be found in Mr. F. J. Stimson’s American Statute Law, and in the same author’s Federal and State Constitutions of the United States (1908). The subject of state constitutions has also been very well treated by Professor J. Q. Dealey in his book Our State Constitutions. The great authority was the collection of the state constitutions, embracing (together with the colonial charters) all that have been duly enacted since 1776, in the two thick quarto volumes entitled Federal and State Constitutions, published under the authority of Congress by Ben. Perley Poore, Washington, 1878. In 1909 a new collection was under the authority of Congress published in seven volumes entitled The Federal and State Constitutions, Colonial Charters and other Organic Laws of the States, Territories, and Colonies now or heretofore forming the United States of America, edited by Francis Newton Thorpe, Ph.D. LL.D. It is much to be wished that an annual, or a biennial or even quinquennial supplement to this new collection should be officially published, containing all the new consitutions and constitutional amendments. At present it is very difficult, even for residents in the United States, to ascertain exactly how the constitution of each state stands at a given moment; and I have not found it possible to keep abreast of the changes made since the aforesaid new collection went to press.
 Nowadays, however, the Landesgemeinden (which survive only in Uri, Unterwalden, Glarus, and Appenzell, having been recently discontinued in Schwyz and Zug) do not act as constituent or constitution-enacting bodies, though they still directly legislate.
 Mr. F. J. Stimson (Federal and State Constitutions, p. 68) well observes that whereas the extreme democrats of the Revolutionary age desired to limit as much as possible the powers of the federal government, deeming it dangerous to liberty, they were glad to entrust very wide powers to the state legislatures which to them represented popular power. The propertied and educated classes on the other hand feared the state legislatures and sought to have restrictions placed upon them. The precedent of the Declaration of Independence, whose influence was great, helped them to secure the insertion of such restrictions in Bills of Rights. Of late years quite new reasons (to be presently referred to) have arisen for limiting legislative powers.
 Not till 1889, however, did New Hampshire strike out of her Constitution of 1792 a provision enabling the legislature to authorize towns to provide for the support of “public Protestant teachers of piety, religion, and morality.”
 In Arkansas, Maryland, Mississippi, North Carolina, South Carolina, and Texas, a man is declared ineligible for office if he denies the existence of God; in Pennsylvania and Tennessee he is ineligible if he does not believe in God, and in the existence of future rewards and punishments. In Arkansas and Maryland such a person is also incompetent as a witness or juror.
 These provisions were inserted shortly after the Civil War in order to protect the Negroes.
 Until 1891, Kentucky added, “The right of property is before and higher than any constitutional sanction; and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever,” although this doctrine had been annulled, in effect, by the Thirteenth Amendment to the federal Constitution.
 A curious survival may be noted in the provisions enabling the jury to determine law as well as fact in libel cases; e.g., Mississippi (1890) and Kentucky (1891) in criminal, Wyoming (1889) also in civil cases.
 North Carolina, Mississippi, Missouri, Louisiana, Colorado, Kentucky, Oklahoma, and Montana, states in which daily experience shows that the measures taken have not hitherto proved successful.
 Mississippi (Constitution of 1890) allows courts of justice to exclude, in some classes of prosecutions, persons not necessary for the conduct of the trial. Wyoming (1889) provides that no person detained as a witness be confined in any room where criminals are imprisoned, Oklahoma that if a verdict is rendered by less than the whole number of jurors, it shall be in writing and signed by each juror concurring therein.
 Redfield, C. J., in 27 Vermont Reports, p. 142, quoted by Cooley, Constit. Limit., p. 108.
 Denio, C. J., in 15 N.Y. Reports, p. 543, quoted ibid. p. 107.
 It has, for instance, been held that a state legislature cannot empower election boards to decide whether a person has by duelling forfeited his right to vote or hold office, this inquiry being judicial and proper only for the regular tribunals of the state.—Cooley, Constit. Limit., p. 112. Acts passed by legislatures affecting some judicial decision already given, have repeatedly been held void by the courts.
 In Switzerland, however, the cantonal courts have not, except perhaps in Uri, the right to declare invalid a law made by a cantonal legislature, the legislature being apparently deemed the judge of its own powers. A cantonal law may, however, be quashed, in some cases, by the Federal Council, or pronounced invalid by the Federal Court. See an interesting discussion of the question in Dubs, Das öffentliche Recht der Schweizerischen Eidgenossenschaft, Part I, p. 113.
 This was not always admitted; just as in England it was at one time held that natural justice and equity were above acts of Parliament. So in the case of Gardner v. The Village of Newburg (Johnson’s Chancery Reports, N.Y. 162), the New York legislature had authorized the village to supply itself with water from a stream, but had made no provision for indemnifying the owners of lands through which the stream flowed for the injury they must suffer from the diversion of the water. The Constitution of New York at that time contained no provision prohibiting the taking of private property for public use without compensation; notwithstanding this, Chancellor Kent restrained the village from proceeding upon the broad general principle which he found in Magna Charta, in a statutory Bill of Rights, which of course could not control the legislature, and in Grotius Puffendorf and Bynkershoek. (I owe that reference to the kindness of Mr. Theodore Bacon.)
As the doctrine stated in the text has been doubted by some critics, I may refer for further confirmation of it to Dash v. Van Kleech, 7 Johns, 477 (words of Chancellor Kent), and People v. Gillson, 109 N.Y. 398. See further on this subject the late Professor Thayer’s Cases in Constitutional Law, p. 48.
 Cooley, Constit. Limit., pp. 200, 227.
 Massachusetts, Maine, New Hampshire, Rhode Island, Colorado, Florida, and South Dakota. In Vermont a similar power is given by statute. In South Dakota the governor may require it “upon important questions of law involving the exercise of his executive powers and upon solemn occasions.” In Florida it is only the governor to whom the power has been given, and whereas under the Constitution of 1868 he could obtain the opinion of the justices “upon any point of law,” he can by the Constitution of 1886 require it only “upon any question affecting his executive powers and duties.” A similar provision was inserted in the Constitution of Missouri of 1865, but omitted in the revised (and now operative) Constitution of 1875, apparently because the judges had so often refused to give their advice when asked for it by a house of the legislature, that there seemed little use in retaining the enactment. In the other states the judges have apparently always consented to answer, save on one or two occasions in Massachusetts. See on the whole subject an interesting pamphlet by the late Professor J. B. Thayer, of the Harvard Law School.
 The judges of the supreme court of Massachusetts suggest in their very learned and instructive opinion, delivered to the legislature, December 31, 1878, that this provision, which appears first in the Massachusetts Constitution of 1780, and was doubtless borrowed thence by the other States, “evidently had in view the usage of the English Constitution, by which the King as well as the House of Lords, whether acting in their judicial or in their legislative capacity, had the right to demand the opinion of the twelve judges of England.” This is still sometimes done by the House of Lords; but the opinions of the judges so given are not necessarily followed by that House, and though always reported are not deemed to be binding pronouncements of law similar to the decisions of a court.
 Mr. Thayer shows, by an examination of the reported instances, that in Massachusetts, New Hampshire, and Rhode Island, as also in Missouri from 1865 to 1875, the courts held that their opinions rendered under these provisions of the state constitutions were not to be deemed judicial determinations, equal in authority to decisions given in actual litigation, but were rather prima facie impressions, which the judges ought not to hold themselves bound by, when subsequently required to determine the same point in an action or other legal proceeding. It is otherwise in Maine and Colorado.