The American Commonwealth - Viscount James Bryce

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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:

      I. The definition of the boundaries of the state. (This does not occur in the case of the older states.)

      II. The so-called bill of rights—an enumeration (whereof more anon) of the citizens’ primordial rights to liberty of person and security of property. This usually stands at the beginning of the constitution, but occasionally at the end.

      III. The frame of government, i.e., the names, functions, and powers of the legislative bodies (including provisions anent the elective suffrage), the executive officers, and the courts of justice.

      IV. Miscellaneous provisions relating to administration and law, including articles treating of education, of the militia, of taxation and revenue, of the public debts, of local government, of state prisons and hospitals, of agriculture, of labour, of corporations and railroads, of impeachment, and of the method of amending the constitution, besides other matters still less political in their character. The order in which these occur differs in different instruments, and there are some in which some of the above topics are not mentioned at all. The more recent constitutions and those of the newer states are much fuller on these points.

      V. The schedule, which contains provisions relating to the method of submitting the constitution to the vote of the people, and arrangements for the transition from the previous constitution to the new one which is to be enacted by that vote. Being of a temporary nature, the schedule is not strictly a part of the constitution.

      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

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