CONSTITUTIONAL BASIS OF STATE GOVERNMENT [Footnote: For a fuller discussion of the constitutional basis of state government, see Chapter XXII of Beard's American Government and Politics. ]

573. CONSTITUTIONAL LIMITATIONS ON STATE GOVERNMENTS.—Under the Articles of Confederation the states exercised practically sovereign powers; in the interests of a strong National government the Constitution adopted in 1789 distinctly limited the scope of state government. The Federal Constitution transferred many important powers from the states to the Federal government, and imposed certain specific limitations upon state governments. The more important of these limitations are as follows:

No state may, without the consent of Congress, lay or collect imposts and duties upon exports and imports. The single exception to this constitutional prohibition is that a state may lay such imports or duties as are absolutely necessary for executing its inspection laws. No state may lay a tonnage duty without the consent of Congress.

No state may levy a tax on the property, lawful agencies, or instrumentalities of the Federal government. This is not a constitutional limitation, but was deduced by Chief Justice Marshall from the nature of the Federal system. In recent years, however, this doctrine has been modified to mean that no state may tax a federal instrumentality if such a tax would impair its efficiency in performing the function which it was designed to serve.

States may legislate concerning local commercial matters, but no state may interfere with interstate commerce. No state may pass any law impairing the obligation of contracts. The states have practically no control over the monetary system. They may not coin money, emit bills of credit, or make anything but gold and silver coin legal tender. States may charter and regulate state banks, however, and may also authorize a state bank to issue notes for circulation.

No state may make or enforce any law which abridges the privileges or immunities of citizens of the United States. No state shall pass any bill of attainder, by which is meant a legislative act which inflicts punishment upon some person without ordinary judicial trial. Nor may any state pass an ex post facto law, that is to say, a law which imposes punishment for an act which was not legally punishable at the time when it was committed. Lastly, no state may deprive any citizen of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.

574. POWERS OF STATE GOVERNMENTS.—Federal law is the highest law of the land, and no state constitution, state statute, or local law or ordinance, may contravene it. But beyond this restriction, the authority of the state is supreme. Just as state government must defer to Federal authority, so local government is subservient to state authority. Just as the Federal Supreme Court may declare unconstitutional any executive or legislative act, either of the National, state, or local authorities, so the Supreme Court of any state may declare null and void the acts of state or local authorities which conflict with its constitution. Though they are limited by the Federal Constitution in matters which are preeminently national, the states reserve to themselves a vast body of authority. Almost all of the ordinary activities of life are controlled by state or local governments, rather than by the Federal government.

575. CLASSIFICATION OF STATE CONSTITUTIONS: ACCORDING TO AGE.—Each of the forty-eight states in the Union has a written constitution. To bring out the fundamental similarities and differences among the various state constitutions, these documents may be classified in two ways, first as to age, and second, in the light of democratic development.

If state constitutions are classified on the basis of age, it will be noted that the constitutions of Massachusetts, Connecticut, Rhode Island, and other New England states show signs of having been strongly influenced by colonial precedents. Next come constitutions which in form and general content stand midway between the earlier New England constitutions and those of more recent years. The constitutions of New York (1894), Pennsylvania (1873), Indiana (1851), Wisconsin (1848), Kentucky (1891), Minnesota (1857), and Iowa (1857), are examples. Next come those constitutions of the southern states which have been revised within the last quarter of a century. Finally, we may note that California, Oregon, Oklahoma and a few other western states have recently drafted new constitutions in which there has been a more or less radical departure from the precedents set in the older commonwealths.

576. CLASSIFICATION OF STATE CONSTITUTIONS: IN THE LIGHT OF DEMOCRATIC DEVELOPMENT.—Between 1776 and 1800 American state constitutions were generally brief and conservative. Between 1800 and 1860 the growing tendency toward democratic control resulted in the formation of state constitutions which were more and more liberal. During this period fear of the masses was superseded by distrust of the executive and an unbounded faith in the people acting in their collective capacity. The suffrage was extended, the governor and often state judges came to be elected by direct vote, and the power of the state legislature was enlarged.

After 1860 there was a reverse movement. This was due partly to a growing faith in the executive, and partly to a reaction against the abuse of power by state legislatures. Particularly the more recent state constitutions have limited the power of the state legislature, increased the power of the executive, provided for the centralization of the state administration, and shortened the ballot. The present tendency among state constitutions is to continue in the direction of the above-mentioned reforms.

A. THE PARTS OF A STATE CONSTITUTION

577. THE BILL OF RIGHTS.—A vital part of a state constitution is the bill of rights, roughly corresponding to the first ten amendments to the Federal Constitution. Generally the bill of rights affirms the principle of republican government, maintains that all powers are inherent in the people, and declares that all free government is formed by the authority of the people. A typical bill of rights also provides that the laws of the state shall not be suspended except by the legislative assembly, and includes the traditional limitations on behalf of private rights. These include the right of free speech; the right to jury trial; the free exercise of religious worship; the right peaceably to assemble and petition the government for redress of grievances; the privilege of the writ of habeas corpus except in case of rebellion, invasion, or public danger; the prohibition of excessive bail, and cruel and unusual punishments; and compensation for private property when taken for public use.

578. THE FRAMEWORK OF GOVERNMENT.—A second part of a typical state constitution deals with the distribution of powers, the limitations upon state officials and other elements in the framework of government. Especially in the more recent constitutions is the form of state government outlined in considerable detail. In addition to providing a system of checks and balances by separating the executive, legislative, and judicial powers of state government, this part of the constitution defines and limits the suffrage, provides for the organization of the state legislature, and prescribes the limitations under which the legislature must operate. The election of the Governor and other important state officials is provided for, as is the relation of rural and municipal government to the state government. This part of the constitution likewise creates the state judicial system, though the regulation of details with regard to jurisdiction, procedure, and appeals is generally left to the discretion of the state legislature.

579. STATE FINANCES.—A third division of a typical state constitution places a number of limitations upon the financial powers of the state legislature. These provisions are often detailed and complicated and hence are difficult to summarize. Their general purpose, however, is to fix a debt limit beyond which the legislature cannot go, and to compel that body to make adequate provision for the payment of interest and principal in the case of debts which shall be incurred.

580. CONTROL OF ECONOMIC INTERESTS.—The more recent state constitutions provide in considerable detail for the regulation of economic interests within the state. The activities of industrial organizations are often narrowly restricted. In many states the constitution provides for a corporation commission with large powers in the regulation of rates and charges, as well as general supervision of corporate business. Many recent constitutions specify the conditions under which women and children may be employed in industrial establishments.

581. PROVISION FOR THE GENERAL WELFARE.—An increasingly important part of the state constitution deals with the general welfare. Such vital concerns as the public school system are dealt with. In a typical western state, for example, the constitution requires the legislature to provide free instruction in the common schools of the state for all persons between the ages of five and twenty-five. The same document sets aside certain revenues for educational purposes. The safeguarding of the public health, and detailed provision for the creation and maintenance of public institutions for the dependent, defective, and delinquent classes, are other concerns of this part of the state constitution.

582. PROVISION FOR AMENDMENT.—In about two thirds of the states the constitution provides for its own amendment by a constitutional convention composed of delegates elected by the voters of the state. The convention method is universally employed when a new constitution is desired. Sometimes the state constitution provides for the holding of such conventions at regular intervals, but generally the initiative is left to the legislature. When, by vote or by resolution, this body declares in favor of a convention, the proposition is placed before the voters. If a majority of these favor the project, the legislature arranges for the election of delegates, and fixes the time and place of the convention sessions. After the convention has completed its work, it is customary for the new constitution to be submitted to the people for approval.

Another common way of amending the state constitution, found in every state except New Hampshire, is through legislative action subsequently ratified by popular vote. By this method separate constitutional amendments may be adopted, without necessitating a wholesale revision of the constitution. Such individual amendments are usually proposed by the legislature and are later submitted to popular vote. In some states only a majority vote of the legislature is required for the proposal of amendments, but ordinarily a special majority of two thirds or three fourths of the members of each house is required. In a few states, amendments cannot be considered until they have been proposed by two successive legislatures. After the amendment has been proposed for the second time, it must be ratified at the polls.

Within the last decade several states, particularly in the West, have adopted a more direct method of amending the constitution. This is through the Initiative and Referendum. [Footnote: The general question of the Initiative and Referendum is treated in Chapter XXXVII.] In Oregon, for example, 8 per cent of the legal voters may petition for a proposed amendment to the constitution. The proposal is then submitted to the voters, and if it receives a majority of all votes cast, it becomes part of the state constitution. Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, and other states allow this type of constitutional amendment.

QUESTIONS ON THE TEXT

1. What are the chief limitations imposed upon state governments by the Federal Constitution?

2. Discuss the range of authority enjoyed by state governments.

3. Classify state constitutions on the basis of age.

4. Discuss the classification of state constitutions in the light of democratic development.

5. What is the nature of a "bill of rights"?

6. Discuss the framework of government as provided for in the state constitution.

7. What provision for state finances does a typical state constitution contain?

8. What are some of the provisions in state constitutions concerning economic interests?

9. How may a state constitution provide for the general welfare?

10. Describe the three ways in which state constitutions may be amended.

REQUIRED READINGS

1. Beard, American Government and Politics, chapter xxii.

2. Guitteau, Government and Politics in the United States, chapter viii.

3. Munro, The Government of the United States, chapter xxviii.

QUESTIONS ON THE REQUIRED READINGS

1. What is the significance of the "Revolutionary constitutions"? (Guitteau, page 86.) 2. What is the relation of present-day state constitutions to the original colonial charters? (Munro, page 404.) 3. Distinguish between the "constituent" and the "law-making" power. (Munro, page 405.) 4. Into what two parts may the early state constitutions be divided? (Guitteau, page 86.) 5. Discuss the check and balance system as provided for in the constitutions of the various states. (Guitteau, page 89.) 6. What authority controls the admission of new states into the Union? (Beard, pages 443-445.) 7. What does the constitution of Oklahoma say concerning the writ of habeas corpus? (Beard, page 449.) 8. Describe the procedure in a constitutional convention. (Munro, pages 410-411.) 9. What is the relation of the state constitution to the state courts? (Beard, pages 452-453.) 10. Enumerate the principles which commonly govern the attitude of the state courts toward the acts of the state legislature. (Beard, pages 452-453.)

TOPICS FOR INVESTIGATION AND REPORT

I

1. The history of your present state constitution.

2. The bill of rights in your state constitution.

3. The framework of government as provided for in the constitution of your state.

4. Methods by means of which your state constitution may he amended.

5. Classify and briefly characterize the amendments which have been appended to the constitution of your state.

II

6. Meaning of the term "constitution." (Gettell, Readings in Political Science, pages 282-283.)

7. Types of constitutions. (Gettell, Readings in Political Science, pages 284-285; Kimball, State and Municipal Government in the United States, chapter ii.)

8. Methods of amending constitutions. (Gettell, Readings in Political Science, pages 299-300.)

9. Difficulties of constitutional amendment in the United States. (Gettell, Readings in Political Science, page 301.)

10. Procedure in the state constitutional convention. (Massachusetts Constitutional Convention Bulletins, No. i. Hoar, Constitutional Conventions.)

11. Recent changes in constitutions. (Dealey, Growth of American State Constitutions from 1776 to the end of the Year 1914.)

12. Present tendencies in state constitutions. (Reinsch, Readings on American State Government, pages 443-449.)

13. The constitution of Oklahoma. (Reinsch, Readings on American State Government, pages 450-464.)

14. A comparison of constitutional amendment in Europe and constitutional amendment in the United States. (Borgeaud, Adoption and Amendment of Constitutions in Europe and America.)

15. British constitutions. (Gettell, Readings in Political Science, pages 286-287; 292-293.)

16. French constitutions. (Gettell, Readings in Political Science, pages 297-298.)

17. German constitutions. (Gettell, Readings in Political Science, pages 298-299.)

FOR CLASSROOM DISCUSSION

18. Does the Federal Constitution too narrowly restrict the activities of the state governments?

19. Does the bill of rights in your state constitution adequately protect your rights?

20. Does the constitution of your state too narrowly restrict the financial powers of the state legislature?

21. Is your state constitution too easy of amendment? Is it too difficult of amendment?

22. Recent state constitutions tend to be very long and detailed. What are the advantages and disadvantages of this development?