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chapter 38: The Development of 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 Development of State Constitutions
It was observed in the last chapter that the state constitutions furnish invaluable materials for history. Their interest is all the greater, because the succession of constitutions and amendments to constitutions from 1776 till today enables the annals of legislation and political sentiment to be read in these documents more easily and succinctly than in any similar series of laws in any other country. They are a mine of instruction for the natural history of democratic communities. Their fulness and minuteness make them, so to speak, more pictorial than the federal Constitution. They tell us more about the actual methods and conduct of the government than it does. If we had similar materials concerning the history of as many Greek republics during the ages of Themistocles and Pericles, we could rewrite the history of Greece. Some things, however, even these elaborately minute documents do not tell us. No one could gather from then what were the modes of doing business in the state legislatures, and how great a part the system of committees plays there. No one could learn what manner of men constitute those bodies and determine their character. No one would know that the whole machinery is worked by a restlessly active party organization. Nevertheless they are so instructive as records of past movements, and as an index to the present tendencies of American democracy, that I heartily regret that the space at my disposal permits me to make only a sparing use of the materials which I gathered during many months spent in studying the one hundred and thirteen constitutions enacted between 1776 and 1887, to which many more have since been added.1
Three periods may be distinguished in the development of state governments as set forth in the constitutions, each period marked by an increase in the length and minuteness of those instruments.
The first period covers about thirty years from 1776 downwards, and includes the earlier constitutions of the original thirteen states, as well as of Kentucky, Vermont, Tennessee, and Ohio.
Most of these constitutions were framed under the impressions of the Revolutionary War. They manifest a dread of executive power and of military power, together with a disposition to leave everything to the legislature, as being the authority directly springing from the people. The election of a state governor is in most states vested in the legislature. He is nominally assisted, but in reality checked, by a council not of his own choosing. He has not (except in Massachusetts) a veto on the acts of the legislature.2 He has not, like the royal governors of colonial days, the right of adjourning or dissolving it. The idea of giving power to the people directly has scarcely appeared, because the legislature is conceived as the natural and necessary organ of popular government, much as the House of Commons is in England. And hence many of these early constitutions consist of little beyond an elaborate bill of rights and a comparatively simple outline of a frame of government, establishing a representative legislature,3 with a few executive officers and courts of justice carefully separated therefrom.
The second period covers the first half of the present century down to the time when the intensity of the party struggles over slavery (1850–60) interrupted to some extent the natural processes of state development. It is a period of the democratization of all institutions, a democratization due not only to causes native to American soil, such as the rise in the West of new agricultural communities where all the settlers were practically equal, the supremacy in politics of the generation who had, as boys during the Revolutionary War, been permeated by the phrases of 1776, but also to the influence of French republican ideas, an influence which began to decline after 1805 and ended with 1851, since which time French examples and ideas have counted for little or nothing. Such provisions for the maintenance of religious institutions by the state as had continued to exist are now swept away. The principle becomes established (in the North and West) that constitutions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given to the people. Property qualifications are abolished,4 and a suffrage practically universal, except that it often excludes free persons of colour, is introduced. Even the judges are not spared. Many constitutions shorten their term of office, and direct them to be chosen by popular vote. The state has emerged from the English conception of a community acting through a ruling legislature, for the legislature begins to be regarded as being only a body of agents exercising delegated and restricted powers, and obliged to recur to the sovereign people (by asking for a constitutional amendment) when it seeks to extend these powers in any particular direction. The increasing length of the constitutions during this half century shows how the range of the popular vote has extended, for these documents now contain a mass of ordinary law on matters which in the early days would have been left to the legislatures.
In the third period, which begins from about the time of the Civil War, a slight reaction may be discerned, not against popular sovereignty, which is stronger than ever, but in the tendency to strengthen the executive and judicial departments as against the legislative. The governor had begun to receive in the second period, and has now in every state but one, a veto on the acts of the legislature. His tenure of office has been generally lengthened; the restrictions on his reeligibility generally removed. In many states the judges have been granted larger salaries, and their terms of office lengthened. Some constitutions have even transferred judicial appointments from the vote of the people to the executive. But the most notable change of all has been the narrowing of the competence of the legislature, and the fettering its action by complicated restrictions. It may seem that to take powers away from the legislature is to give them to the people, and therefore another step towards pure democracy. But in America this is not so, because a legislature is apt to yield to any popular clamour, however transient, while direct legislation by the people involves delay. Such provisions may therefore prove to be conservative in their results, if not in their intention.
This process of development, which first exalted and then depressed the legislature, which extended the direct interference of the people, which changed the constitution itself from a short into a long, a simple into a highly complex document, has of course not yet ended. Forces are already at work which will make the constitutions of forty years hence different from those of today. To conjecture the nature of these forces we must examine a little further the existing constitutions of the states, especially the later among them; and more particularly that remarkable group enacted in 1889 by the six commonwealths which were admitted to the Union in 1889 and 1890, as well as the constitution which Oklahoma gave herself in 1907. We must also distinguish between different types of constitution corresponding to the different parts of the Union in which the states that have framed them are situate.
Three types were formerly distinguishable, the old colonial type, best seen in New England and the older Middle states, the Southern or slave state type (in which the influence of the first Constitution of Virginia was noticeable), and the new or Western type. At present these distinctions are less marked. All the Southern states have given themselves new constitutions since the war; and the differences between these and the new constitutions of the Northwestern and Pacific states are not salient. This is because the economic and social changes produced by the War of Secession and abolition of slavery broke to pieces the old social conditions, and made these Southern states virtually new communities like those of the West. There is still, however, a strong contrast between the New England states, to which for this purpose we may add New Jersey, whose present constitutions all date from the period between 1780 and 1844, and the Southern and Western states, nearly all of whose constitutions are subsequent to that year. In these older states the power of the executive is generally greater. The judges are frequently named by the governor, and not elected by the people. The electoral districts are not always equal. The constitutions are not so minute, and therefore the need of recurring to the people to change them arises less frequently.
Taking the newer, and especially the Western and Southern constitutions, and remembering that each is the work of an absolutely independent body, which (subject to the federal Constitution) can organize its government and shape its law in any way it pleases, so as to suit its peculiar conditions and reflect the character of its population, one is surprised to find how similar these newer instruments are. There is endless variety in details, but a singular agreement in essentials. The influences at work, the tendencies which the constitutions framed since 1865 reveal, are evidently the same over the whole Union. What are the chief of those tendencies? One is for the constitutions to grow longer. This is an absolutely universal rule. Virginia, for instance, put her first constitution, that of 1776, into four closely printed quarto pages, that is, into about three thousand two hundred words. In 1830, she needed seven pages; in 1870, twenty-two pages, or seventeen thousand words; her latest (1902) has thirty-five thousand words. Texas has doubled the length of her constitution from sixteen quarto pages in 1845 to thirty-four in 1876. Pennsylvania was content in 1776 with a document of eight pages, which for those times was a long one; she now requires twenty-three. The Constitution of Illinois filled ten pages in 1818; in 1870 it had swollen to twenty-five. These are fair examples, but the extremes are marked by the Constitution of New Hampshire of 1776, which was of about six hundred words (not reckoning the preamble), and the Constitution of Missouri of 1875 and of South Dakota of 1889, which have each more than twenty-six thousand words. Even these were surpassed by Oklahoma, whose Constitution of 1907 exceeded thirty-three thousand words, and by Louisiana, whose Constitution of 1898 has forty-five thousand. The new constitutions are longer, not only because new topics are taken up and dealt with, but because the old topics are handled in far greater detail. Such matters as education, ordinary private law, railroads, state and municipal indebtedness, were either untouched or lightly touched in the earlier instruments. The provisions regarding the judiciary and the legislature, particularly those restricting the power of the latter, have grown far more minute of late years, as abuses of power became more frequent, and the respect for legislative authority less. As the powers of a state legislature are prima facie unlimited, these bodies can be restrained only by enumerating the matters withdrawn from their competence, and the list grows always ampler. The time might almost seem to have come for prescribing that, like Congress, they should be entitled to legislate on certain enumerated subjects only, and be always required to establish affirmatively their competence to deal with any given topic.
I have already referred to the progress which the newer constitutions show towards more democratic arrangements. The suffrage is now in almost every state enjoyed by all adult males, and in ten by adult females also. Citizenship is quickly and easily accorded to immigrants. And, most significant of all, the superior judges, who were formerly named by the governor, or chosen by the legislature, and who held office during good behaviour, are now in most states elected by the people for fixed terms of years. I do not ignore the strongly marked democratic character of even the first set of constitutions, formed at and just after the Revolution; but that character manifested itself chiefly in negative provisions, i.e., in forbidding exercises of power by the executive, in securing full civil equality and the primordial rights of the citizen. The new democratic spirit is positive as well as negative. It refers everything to the direct arbitrament of the people. It calls their will into constant activity, sometimes by the enactment of laws on various subjects in the constitution, sometimes by prescribing to the legislature the purposes which legislation is to aim at. Even the tendency to support the executive against the legislature is evidence not so much of respect for authority as of the confidence of the people that the executive will be the servant of popular opinion, prepared at its bidding to restrain that other servant—the legislature—who is less trusted, because harder to fix with responsibility for misdoing. On the whole, therefore, there can be no doubt that the democratic spirit is now more energetic and pervasive than it was in the first generation. It is a different kind of spirit. It is more practical, more disposed to extend the sphere of governmental interference, less content to rely on general principles. One discovers in the wording of the most recent constitutions a decline of that touching faith in the efficacy of broad declarations of abstract human rights which marked the disciples of Jeffrson. But if we compare the present with the second or Jacksonian age, it may be said that there has been in progress for some years past a certain reaction, not against democracy but towards a better scheme of democracy, a reaction as yet more discernible in feeling than in tangible results, fainter than the levelling movement of 1820–50, and not likely to restore the state of things that existed before that movement, yet noticeable as showing that the people do learn by experience, and are not indisposed to reverse their action and get clear of the results of past mistakes. The common saying that on the road to democracy there are vestigia nulla retrorsum is not universally true in America.
That there are strong conservative tendencies in the United States is a doctrine whose truth will be illustrated later on. Meantime it is worth while to ask how far the history of state constitutions confirms the current notion that democracies are fond of change. The answer is instructive, because it shows how flimsy are the generalizations which men often indulge in when discussing forms of government, as if all communities with similar forms of government behaved in the same way. All the states of the Union are democracies, and democracies of nearly the same type. Yet while some change their constitutions frequently, others scarcely change theirs at all. Let me recall the reader’s mind to the distinction already drawn between the older or New England type and the newer type, which we find in the Southern as well as the Western states. It is among the latter that changes are frequent. Louisiana, for instance, whose state life began in 1812, has had seven complete new constitutions, without counting the so-called Secession Constitution of 1861. Virginia, Georgia, and South Carolina (original states) have had six each. Kansas, which began in 1855, has had four. Among the Northern states, Pennsylvania (an original state) has had four; Illinois, dating from 1818, three; New York, five; Delaware, four; whereas Connecticut and Rhode Island (both original states), and Maine (dating from 1820), have had only one each, Vermont and New Hampshire, three each. Massachusetts still lives under her Constitution of 1780, which has indeed been amended at various dates, yet not to such an extent as to efface its original features. Of the causes of these differences I will now touch on two only. One is the attachment which in an old and historic, a civilized and well-educated community, binds the people to their accustomed usages and forms of government. It is the newer states, without a past to revere, with a population undisciplined or fluctuating, that are prone to change. In well-settled commonwealths the longer a constiution has stood untouched, the longer it is likely to stand, because the force of habit is on its side, because an intelligent people learns to value the stability of its institutions, and to love that which it is proud of having long ago created.
The other cause is the difference between the swiftness with which economic and social changes move in different parts of the country. They are the most constant sources of political change, and find their natural expression in alterations of the constitution. Such changes have been least swift and least sudden in the New England and Middle states, though in some of the latter the growth of great cities, such as New York and Philadelphia, has induced them, and induced therewith a tendency to amend the constitutions so as to meet new conditions and check new evils. They have been most marked in regions where population and wealth have grown with unexampled speed, and in those where the extinction of slavery has changed the industrial basis of society. Here lies the explanation of the otherwise singular fact that several of the original states, such as Virginia and Georgia, have run through many constitutions. These whilom slave states have not only changed greatly but changed suddenly. Society was dislocated by the Civil War, and has had to make more than one effort to set itself right.
The total number of distinct constitutions adopted in 1776 or enacted in the several states from that year down till 1909—the states being then 13 and in the latter 46 in number—is 127; and to these constitutions a vast number of amendments have been at different times adopted.5 The period since 1860 shows a somewhat greater frequency of change than the eighty-four years preceding; but that may be accounted for by the effects of the war on the Southern states. The average duration of a constitution has been estimated at thirty years, and there are now seven which have lasted more than sixty years. Both whole constitutions and particular amendments are frequently rejected by the people when submitted to them at the polls. This befel six draft constitutions and more than twenty-eight amendments between 1877 and 1887.
Putting all these facts together, and bearing in mind to how large an extent the constitutions now, whether wisely or foolishly, embody ordinary private and administrative law and therefore invite amendment, the American democracy seems less inclined to changefulness and inconstancy than either abstract considerations or the descriptions of previous writers, such as Tocqueville, would have led us to expect. The respect for these fundamental instruments would no doubt be greater if the changes in them were even fewer, and the changes would be fewer if the respect were greater; but I see little reason to think that the evil is increasing.
A few more observations on what the constitutions disclose are needed before I conclude this necessarily brief sketch of the most instructive sources for the history of popular government which the nineteenth century produced—documents whose clauses, while they attempt to solve the latest problems of democratic commonwealths, often recall the earliest efforts of our English forefathers to restrain the excesses of mediæval tyranny.
The constitutions witness to a singular distrust by the people of its own agents and officers, not only of the legislatures but also of local authorities, as well rural as urban, whose powers of borrowing or undertaking public works are strictly limited. Even the judges are in some states restrained in their authority to commit for contempt of court, and three recent constitutions contain severe provisions against abuse of his veto and appointing power by the governor, and against bribery offered to or by him.6
They witness also to a jealousy of the federal government. By most constitutions a federal official is made incapable, not only of state office, but of being a member of a state legislature. These prohibitions are almost the only references to the national government to be found in the state constitutions, which so far as their terms go might belong to independent communities. They usually talk of corporations belonging to other states as “foreign,” and sometimes try to impose special burdens on them.
They show a wholesome anxiety to protect and safeguard private property in every way. The people’s consciousness of sovereignty has not used the opportunity which the enactment of a constitution gives to override private rights; there is rather a desire to secure such rights from any encroachment by the legislature: witness the frequent provisions against the taking of property without due compensation, and against the passing of private or personal statutes which could unfairly affect individuals. The only exceptions to this rule are to be found in the case of anything approaching a monopoly, and in the case of wealthy corporations. But the “monopolist” is regarded as the enemy of the ordinary citizen, whom he oppresses; and the corporation—it is usually corporations that are monopolists—is deemed not a private person at all, but a sort of irresponsible tyrant whose resources enable him to overreach the law. Corporations are singled out for special taxation and are evidently the objects of growing suspicion and hostility, for the newer constitutions multiply provisions for holding them in check and keeping them under close supervision. Michigan and Mississippi limit their duration. Oklahoma denies them the rights of ordinary citizens before the courts; some states forbid trustees to invest in corporate securities. Labour laws are enacted to apply to them only. A remarkable instance of this dread of monopolies is to be found in the Constitution of Illinois of 1870, with its provisions anent grain elevators, warehouses, and railroads.7 The newer constitutions of other Western states, such as California and Texas, are not less instructive in this respect. Nor is it surprising that efforts should be made in some of the more recent instruments to strike at the combinations called “trusts.”
The extension of the sphere of state interference, with the corresponding departure from the doctrine of laissez faire is a question so large and so interesting as to require a chapter to itself in my second volume. Here it may suffice to remark, that some departments of governmental action, which on the continent of Europe have long been handled by the state, are in America still left to private enterprise. For instance, the states neither own nor manage railways, or telegraphs, or mines, or forests, and they sell their public lands instead of working them. There is, nevertheless, visible in recent constitutions a strong tendency to extend the scope of public administrative activity. Most of the newer instruments establish not only railroad commissions, intended to control the roads in the interest of the public, but also bureaux of agriculture, labour offices, mining commissioners, land registration offices, dairy commissioners, insurance commissioners, and agricultural or mining colleges. And a reference to the statutes passed within the last few years in the Western states will show that more is being done in this direction by the legislatures, as exponents of popular sentiment, than could be gathered from the older among the Western constitutions.
A spirit of humanity and tenderness for suffering, very characteristic of the American people, appears in the directions which many constitutions contain for the establishment of charitable and reformatory institutions, and for legislation to protect children.8 Sometimes the legislature is enjoined to provide that the prisons are made comfortable; or directions are given that homes or farms be provided as asylums for the aged and unfortunate.9 On the other hand, this tenderness is qualified by the judicious severity which in most states debars persons convicted of crime from the electoral franchise. Lotteries are stringently prohibited by some of the recent constitutions.
In the older Northern constitutions, and in nearly all the more recent constitutions of all the states, ample provision is made for the creation and maintenance of schools. Even universities are the object of popular zeal, though a zeal not always according to knowledge. Most Western constitutions direct their establishment and support from public funds or land grants.10 Some of the later constitutions contain significant provisions intended to propitiate labour. Thus Wyoming, California, Utah, and Idaho declare that eight hours shall be a lawful day’s work on all state and municipal works, Wyoming adding “in all mines.” Many prohibit the letting out of convict labour; and several prohibit contracts by which employers may attempt to escape from liability for accidents to their workpeople. Mississippi abolishes (1890), so far as concerns railroads, the established legal doctrine of an employer’s nonliability for accidents caused to a workman by the fault of a fellow workman.
Although a constitution is the fundamental and supreme law of the state, one must not conclude that its provisions are any better observed and enforced than those of an ordinary statute. When an offence is thought worthy of being specially mentioned in a constitution, this happens because it is specially frequent, and because it is feared that the legislature may shrink from applying due severity to repress it, or the public prosecuting authorities may wink at it.11 Certain it is that in many instances the penalties threatened by constitutions fail to attain their object. For instance, the constitutions of most of the Southern states have for many years past declared duellists, and even persons who abet a duel by carrying a challenge, incapable of office, or of sitting in the legislature. This may have checked the formal duel by challenge, which is now rarely heard of, but the practice of private warfare does not seem to have declined in Mississippi, Texas, or Arkansas, where these provisions exist. Virginia had such a provision in her Constitution of 1830. She repeated it in her Constitution of 1850, adding, however, that the disqualification should not attach to those who had offended previously—i.e., in violation of the Constitution of 1830.12 Shooting at sight, not uncommon in some parts, is neither morally nor socially an improvement on duelling, though apparently exempt from these constitutional penalties.
New York has been so much exercised on the subject of bribery and corruption, as to declare (amendments of 1874), not only that every member of the legislature and every officer shall take an oath that he has given nothing as a consideration for any vote received for him, and that the legislature shall pass laws excluding from the suffrage all persons convicted of bribery or of any infamous crime but also that the giving or offering to or receiving by an officer of any bribe shall be a felony. These provisions are further strengthened in her Constituion of 1894. The recent constitutions of North Dakota, Montana, and Wyoming declare logrolling to be bribery. South Dakota requires her legislators and officers to swear that they have not received and will not receive a free pass over a railroad for any vote or influence they may give, while Kentucky deprives of office (ipso facto) any legislative public officer or judge who accepts such a favour. And lobbying, which is openly practised in every building where a legislature meets, is declared by California to be a felony, and by Georgia to be a crime.
 I venture again to commend the study of these constitutions to the philosophic inquirer into what may be called the science of comparative politics. Both among the pre-Revolutionary charters and the state constitutions he will find matter full of instruction. Among the former I may refer especially to the Frame of Government of Pennsylvania, 1682 and 1683, and to the Fundamental Constitutions of Carolina of 1669. These last were framed by John Locke, and revised by the first Lord Shaftesbury. They were found unsuitable, were only partially put in force, and were abrogated by the proprietors in 1693, but they are scarcely less interesting to the student of history on that account.
 In New York a veto on acts of the legislature was by the first constitution vested in the governor and judges of the highest state court, acting together.
 The wide powers of these early legislatures are witnessed to by the fear which prudent statesmen entertained of their action. Madison said, in the Philadelphia Convention of 1787, “Experience proves a tendency in our governments to throw all power into the legislative vortex. The executives of the States are little more than ciphers; the legislatures are omnipotent.”
 Though Massachusetts forgot till 1892 to abolish the property qualification for her governorship.
 Owing to the absence of any general official record, it is hard to ascertain the exact number, but in the ten years between 1894 and 1904 it would appear that 381 were voted on, of which 217 were adopted and 164 rejected (Dealey, Our State Constitutions, p. 13). Between 1892 and 1909 California adopted 47 amendments, Georgia and Minnesota 11 each, Florida, Oregon, and North Dakota 10 each, and some states none at all.
 Constitutions of North Dakota, South Dakota, and Wyoming, all of 1889.
 See the remarkable group of cases beginning with Munn v. Illinois (commonly called the Granger Cases) in 94 U.S. Reports, p. 113.
 So Kentucky (Constitution of 1891, § 243) and North Dakota (Constitution of 1889, § 209) prohibit the labour of children under twelve. Wyoming forbids the employment of girls or women in mines.
 So Mississippi (Constitution of 1890, § 262).
 Mississippi seems to seek the political education of the legislator by requiring him to swear to read the constitution or have it read to him.
 This is said to have happened in some states as respects lotteries.
 “The General Assembly may provide that no person shall be capable of holding or being elected to any post of profit, trust, or emolument, civil or military, legislative, executive, or judicial, under the government of this commonwealth who shall hereafter fight a duel, or send or accept a challenge to fight a duel, the probable issue of which may be the death of the challenger or challenged, or who shall be second to either party, or shall in any manner aid or assist in such duel, or shall be knowingly the bearer of such challenge or acceptance; but no person shall be so disqualified by reason of his having heretofore fought such duel or sent or accepted such challenge, or been second in such duel, or bearer of such challenge or acceptance” (Constitution of 1830, art. III, § 12, repeated in Constitution of 1850, art. IV, § 17). In her Constitution of 1870 Virginia is not content with suggesting to the legislature to disqualify duellists, but does this directly by art. III, § 3. Many constitutions now declare duellists disqualified for office, and others add a disqualification for the franchise. Nearly all are Southern and West states. Kentucky (Constitution of 1891) requires all officers, members of the General Assembly, and persons being admitted to the bar to take an oath that they have not fought a duel since the adoption of the constitution, nor aided any person in so offending.