CHANGES IN THE STATE CONSTITUTIONS AFTER 1787

The effects of the conservative reaction were not confined to the general government. The movement to limit the power of the popular majority was felt in the domain of state as well as national politics. Even before the Constitutional Convention assembled the political reaction was modifying some of the state constitutions. This is seen especially in the tendency to enlarge the powers of the judiciary which was the only branch of the state government in which life tenure survived. This tendency received powerful encouragement and support in the adoption of the Federal Constitution which secured to the judiciary of the general government an absolute veto on both federal and state legislation. For as the state courts were not slow in following the precedent set by the Federal courts, what had been before the adoption of the Constitution a mere tendency soon became the practice in all the states. This in reality accomplished a revolution in the actual working of the state governments without any corresponding change in their outward form. It effected a redistribution of political powers which greatly diminished the influence of the popularly elected and more responsible branches of the state government and gave a controlling influence to that branch over which the people had least control.

Not only was the state judiciary allowed to assume the veto power, but their independence of public opinion was more effectually safeguarded by depriving a mere majority of the legislature of the power to remove them. The provision of the Federal Constitution requiring a two-thirds majority in the legislative body for removal by impeachment or otherwise was quite generally copied. Without some such safeguard the party in control of the legislature could prevent the exercise of the judicial veto by removing from office any judges who dared to oppose its policy.

New York and South Carolina were the only states adopting constitutions during the Revolutionary period, which included provisions limiting the power of the majority to impeach public officials. The New York constitution of 1777 required a two-thirds majority in the lower house, and the South Carolina constitution of 1778 a two-thirds majority in both houses. Pennsylvania copied the impeachment provisions of the Federal Constitution in her constitution of 1790; Delaware went even farther, and in her constitution of 1792, required a two-thirds majority in both houses; Georgia followed the example of the Federal Constitution in 1798; Virginia, in 1830; North Carolina, in 1835; Vermont, in 1836; New Jersey, in 1844; and Maryland, in 1851.

With the progress of this movement to restore the system of checks in the state constitutions the governor regained his independence of the legislature and also many of the rights and prerogatives of which the Revolution had deprived him. He was made coÖrdinate with the legislature, set over against it and generally clothed with the qualified veto power, which made him for all practical purposes the third house of that body. Georgia increased the governor's term of office to two years and gave him the qualified veto power in 1798. Pennsylvania made his term of office three years and gave him the veto power in 1790. New Hampshire conferred the veto power on him in 1792 and New York in 1821.

This tendency to make the public official less directly dependent upon the people or their immediate representatives is clearly seen in other important changes made in the state constitutions during this period. Popular control over the legislature was diminished by lengthening the terms of the members of both houses and by providing that the upper house should be elected for a longer term than the lower. Georgia established an upper house in 1789 and made the term of office of its members three years. In 1790 Pennsylvania also added a senate whose members were to be elected for four years, and South Carolina increased the term of its senators from one to four years. Delaware extended the term from one to two years for members of the lower house and from three to four years for members of the upper house and made the legislative sessions biennial instead of annual in 1831. North Carolina increased the term of members of both houses from one to two years and adopted biennial sessions in 1835. Maryland in 1837 extended the term of senators from five to six years, and in 1846 established biennial sessions of the legislature. The responsibility of the legislature was still further diminished by the gradual adoption of the plan of partial renewal of the senate, which was incorporated in the Revolutionary constitutions of Delaware, New York and Virginia and later copied in the Federal Constitution. This ensured the conservative and steadying influence exerted by a body of hold-over members in the upper house.

With the exception of five states in which the members of one branch of the legislature were elected for terms varying from two to five years, the Revolutionary state constitutions provided for the annual election of the entire legislature. This plan made both houses conform to the latest expression of public opinion by the majority of the qualified voters at the polls. And since neither the executive nor the courts possessed the veto power, the system ensured prompt compliance on the part of the law-making body with the demands of the people as expressed in the results of the legislative election.

The influence of public opinion on the state governments was greatly weakened by the constitutional changes above mentioned. The lower branch of the legislature, inasmuch as all its members were simultaneously elected, might be regarded as representative of recent, if not present, public opinion, though effective popular control of that body was made more difficult by lengthening the term of office, since this diminished the frequency with which the voters could express in an authoritative manner their disapproval of the official record of its members. Under the plan adopted present public opinion as formulated in the results of the last election was not recognized as entitled to control the state senate.

These changes in the state constitutions by which the executive and judicial branches of the government acquired the veto power amounted in practice to the creation of a four-chambered legislature. By thus increasing the number of bodies which it was necessary for the people to control in order to secure the legislation which they desired, their power to influence the policy of the state government was thereby diminished. And when we reflect that not only was legislative authority more widely distributed, but each branch of the state government exercising it was also made less directly dependent on the qualified voters, we can see that these constitutional provisions were in the nature of checks on the numerical majority.

A consideration of the changes made in the method of amending the state constitutions leads to the same conclusion. During the Revolutionary period, as we have seen, the tendency was strongly toward making the fundamental law the expression of the will of the numerical majority. Difficulties in the way of change were reduced to a minimum. But under the influence of the political reaction which followed, and which produced the Constitution of the United States, the state governments were so organized as to make it more difficult for the majority to exercise the amending power. Georgia in 1789 changed the method of amending the state constitution by requiring a two-thirds majority in a constitutional convention, and made another change in 1798 by which a two-thirds majority in each house of the legislature and a three-fourths majority in each house of the succeeding legislature was required for the adoption of an amendment to the constitution. South Carolina in 1790 adopted a provision guarding against mere majority amendment by making the approval of a two-thirds majority in both branches of two successive legislatures necessary for any changes in the constitution. Connecticut in 1818 restricted the power of amending by requiring a majority in the house of representatives, a two-thirds majority in both houses of the next legislature, and final approval by a majority of the electors. New York in 1821 adopted a plan which required that an amendment should receive a majority in each branch of the legislature, a two-thirds majority in each branch of the succeeding legislature, and be approved by a majority of the voters. North Carolina in 1835 made a three-fifths majority in each house of the legislature and a two-thirds majority of each house of the following legislature necessary for changes in the constitution.

The judicial veto served the purpose of preventing majority amendment under the guise of ordinary legislation, while a safeguard against constitutional changes favored by a mere majority was thus provided in the extraordinary majority required in both houses of the legislature to propose or adopt amendments. This, as has been shown in the case of the Federal Constitution, is a formidable check on the majority. In view of this restriction upon the proposing of amendments the provision for ratification by a popular majority, which owing to the progress of the later democratic movement has now been generally adopted, is no real concession to the principle of majority rule.

Assuming that a two-thirds majority in the legislature is required to propose an amendment, and that the principle of representation is so applied that each party is represented in the legislature in proportion to its popular vote, it would scarcely ever be possible for any party to propose an amendment to the state constitution, since it can not be expected under any ordinary conditions to control two-thirds of the popular vote. But inasmuch as the successful party often secures under our system much more than its proportional share of representation in the legislature, it is by no means unusual for a party to have a two-thirds majority in both houses of a state legislature. This would appear to give the numerical majority under such conditions the power to propose and adopt amendments. Such would be the case if the party were really responsible to those who supported it at the polls. But this would assume the existence of a purely state party, organized with reference to state issues only, and carrying the election as the advocate of a definite state policy. Moreover, it would presuppose all those means, political and constitutional, by which the majority in the legislature would be accountable to the popular majority in the state. This is rendered impossible, however, as has been shown, by our system of government.

The above-mentioned changes in the constitutions of the older states may be attributed in large measure to the reaction against democracy which brought about the adoption of the Federal Constitution. They may be regarded as an expression of that distrust and fear of democracy which filled the minds of those who framed and set up our Federal government. It is not contended, however, that they are now so regarded by the masses of the people. The work of deifying the Federal Constitution was soon accomplished. And when the people had come to venerate it as the most perfect embodiment of the doctrine of popular sovereignty that the intelligence of man could devise, it was but natural that they should acquiesce in the proposal to make the state governments conform more closely to the general plan of that instrument. In view of the widespread sentiment which amounted to a blind and unthinking worship of the Constitution, it is not surprising that the political institutions of the general government should have been largely copied by the states. The only surprising thing in this connection is the fact that they did not follow the Federal model more closely, since every feature of it was the object of the most extravagant eulogy. Here we see, however, an inconsistency between profession and practice. The people who tolerated no criticism of the Federal Constitution showed nevertheless a distrust of some of its more conservative features. Much as the indirect election of President and United States senators was favored by the framers of our Federal Constitution, there has been no tendency to apply that principle in the selection of the corresponding state officials.

In all the states framing new constitutions during the Revolutionary period, except Massachusetts, New Hampshire, and New York, the governor was elected by the legislature. Pennsylvania abandoned indirect election and adopted election by the qualified voters in 1790; Delaware, in 1792; Georgia, in 1824; North Carolina, in 1835; Maryland, in 1837; New Jersey, in 1844; Virginia, in 1850; and South Carolina, in 1865. South Carolina and Maryland are the only states which have ever had indirect election of the upper house. Both adopted it in 1776, the constitution of South Carolina providing that the members of the lower house should elect the members of the upper house, and the constitution of Maryland requiring that members of the upper house should be chosen by an electoral college. This was abandoned for direct election in South Carolina in 1778 and in Maryland in 1837.

The conservative reaction was soon followed by a new movement toward democracy. This no doubt largely explains the failure of the people to reproduce in their state constitutions all those features which they professed to admire in the Federal Constitution. Not only did they not copy all the new features of that document, but they even discarded some of the then existing provisions of the state constitutions which had been copied in the Federal Constitution. The principle of indirect election which was everywhere recognized in the choice of the state judiciary during the Revolutionary period was gradually abandoned for the more democratic method of direct popular choice which has now become the rule. The life tenure of judges which formerly existed in most of the states has almost entirely disappeared. In all but four states the judges are now chosen for terms varying from two to twenty-one years—the average length of the term being eight or ten years. The combination of direct popular choice with a fixed term of office has had the effect of making the state judiciary much more amenable to public opinion than the corresponding branch of the Federal government. By reason of the relatively long term for which the judges of the state supreme court are elected, however, and the plan of gradual renewal which prevents present public opinion from ever gaining the ascendency in that body, it is still the least responsible and most conservative branch of the state government.

We see, then, two motives exerting an influence in the remolding of the state constitutions, one being the desire to copy the Federal Constitution and the other the belief that the state government should reflect the will of the people. That the attainment of one of these ends would inevitably defeat the other was not generally recognized. The conviction which had become thoroughly rooted in the popular mind that the system of checks and balances was the highest expression of democratic organization ensured the embodiment of the general features of that system in the constitutions of the various states. The constitutional changes having this end in view largely destroyed the responsibility of the state governments to the people and thus prevented the very thing they were designed to accomplish. But however much this system was in reality opposed to the principle of direct popular control, it was adopted by the people with the idea of making the government more readily reflect their will. They were not conscious of any inconsistency in holding tenaciously to the doctrine of checks and balances and at the same time seeking to give the people more control over the state governments. The latter purpose is clearly seen in the constitutional changes relating to the tenure and manner of election of the judiciary and in the adoption of universal suffrage. Summing up the effects of these changes in the state constitutions, we may say that the suffrage was placed upon a democratic basis, the state judiciary was organized on a less irresponsible plan and the appearance of political responsibility secured by applying the principle of direct election to every branch of the state government. The longer term of office established for the legislative and executive branches of the state government, however, together with the increase in the authority of the judiciary and the adoption of the system of checks and balances has upon the whole had the effect of making the state government less responsive to the electorate.

As seen in preceding chapters, the framers of the Federal Constitution made use of the scheme of checks and balances for the purpose of limiting the power of the people. There is little evidence that they favored diffusion of authority except in so far as that authority rested upon a popular basis. Hence they carried the plan much farther in curtailing the power of the House of Representatives than a logical application of the doctrine would have justified, while at the same time giving more authority and power of independent action to the other branches of the general government than was consistent with their avowed, if not real, purpose.

They gave to the executive and judicial branches of the general government power to control the administration of Federal laws. The enforcement of all laws and regulations of the general government, in so far as the President and Senate might desire to enforce them, was guaranteed through the power to appoint and remove those who were entrusted with their execution, while the right of appeal from a state to the Federal courts precluded the possibility of enforcing a state law deemed to exceed the proper limits of state authority.

In the state governments on the other hand we find a high degree of administrative decentralization. The governor, unlike the President, was not given any adequate power to control those entrusted with the execution of state laws. A multitude of directly elected local officials are the agents of the state for this purpose. And since they reflect the sentiment of the various local interests to which they owe their election, it may and often does happen that a law to which those interests are opposed is rendered practically inoperative through the efforts of those local officials who are sworn to enforce it. The practical working of this system often gives to a local community an administrative veto on such general laws of the state as may be opposed to local sentiment. By this means the general executive authority of the state is weakened and its responsibility correspondingly diminished.

In still another respect the policy of dividing authority and parcelling it out between separate and distinct organs of government has been carried much farther in the state than in the Federal Constitution. Unlike the Federal government in which executive power is centralized in the President, the state constitutions have created a number of separate officials, boards and commissions, some directly elected and some appointed, independent of each other and irresponsible except in so far as a fixed term of office implies responsibility. This means that instead of one executive the state has many. Only one of them—the governor—has, it is true, a veto on the enactment of laws; but this, as we have seen, is really a legislative and not an executive power. Each of these has what may be termed an administrative veto; that is, the power to negative the laws which they are expected to administer by simply not enforcing them. The impossibility of securing an honest and faithful administration of the laws where the responsibility for their enforcement is divided between a number of separate and practically independent officials, is clearly shown in the experience of the various states. The evils of this system are illustrated in the state laws enacted for the purpose of controlling the railway business. Provision is usually made for their enforcement through a railway commission either directly elected or appointed by the governor. That direct election by the people for a fixed term, thereby securing independence during that term, fails to guarantee the enforcement of such laws is strikingly shown in the experience of California, where this body has been continually under the domination of the railway interests.[159]

Under a system which thus minutely subdivides and distributes the administrative function, any effective control over the execution of state laws is made impossible. The governor, who is nominally the head of the executive agencies of the state, is not in reality responsible, since he has no adequate power to compel the enforcement of laws directly entrusted to other independent state officials. Any interest or combination of interests that may wish to prevent the enforcement of certain laws may be able to accomplish their end by merely controlling the one official or board whose duty it is to enforce the law in question. Their task would be a much more difficult one, if it were necessary to control for that purpose the entire executive arm of the state. The opportunity for the corrupt use of money and influence is thus vastly increased, since the people, though they might watch and judge fairly well the conduct of one state executive, can not exercise any effective censorship over a large number of such officials.

This irresponsibility which arises out of a wide diffusion of power is not confined to the executive branch of the state government. The legislature in the course of our political development has taken on the same elaborate committee organization which characterizes, as we have seen, our Federal Congress. The same sinister influences working through similar agencies oppose needed legislation. But although the good bills are frequently killed or mutilated in the secrecy of the committee room, the skilful use of money or other corrupt influence often secures the enactment of laws opposed to the interests of the people. Moreover, the practice known as log-rolling by which the representatives of various local interests combine and force through measures which secure to each of certain localities some advantage at the expense of the state at large are so common as to excite no surprise.

The relation existing between the executive and legislative branches under our system is another source of irresponsibility, since it does not follow simply because a law has been placed upon the statute books of a state that it can be enforced. An act may be passed in response to a strong public sentiment, it may be constitutional and the executive may be willing and may even desire to enforce it, and yet be unable to do so. The legislature may, and frequently does, enact laws under the pressure of public opinion while at the same time quietly exercising what is, in effect, a veto on their execution. In the case of much important legislation it can accomplish this by merely not appropriating the funds which are required for their enforcement. The laws against adulteration are a good illustration. An official known perhaps as a dairy and food commissioner may be provided for, whose duty it is to enforce these laws. The nature of the work entrusted to him requires that he should have a corps of assistants, inspectors who are to keep a watchful eye on the goods likely to be adulterated and collect samples of such goods from the various places in the state where they are exposed for sale, and chemists who are to analyze the samples thus procured and determine whether manufacturers and dealers are complying with the law. Unless an adequate sum is appropriated for this purpose, and for prosecuting those who are violating the law, such laws can not be enforced.

In our state governments the subdivision of authority has been carried so far that no effective control over the enactment or enforcement of state laws is possible. Under the influence of the doctrine of checks and balances the policy of widely distributing political authority has inured to the benefit of those private interests which are ever seeking to control the government for their own ends, since it has supplied the conditions under which the people find it difficult to fix the blame for official misconduct. Indeed it may be said that wherever power should be concentrated to ensure responsibility, it has been almost invariably distributed.