The American Commonwealth - Viscount James Bryce

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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

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