Government in the United States, National, State and Local Part 4

CHAPTER III

THE STATE GOVERNMENTS

=Place of the States in Our Federal System.=--Proceeding upward from the county, township, and city, we come to the state, the authority to which the local governments described in the preceding chapters are all subject. The consideration of state government properly precedes the study of national government, not only because the states existed before the national government did, and in a sense furnished the models upon which it was constructed, but because their governments regulate the larger proportion of our public affairs and hence concern more vitally the interests of the ma.s.s of people than does the national government.

The states collectively make up our great republic, but they are not mere administrative districts of the union created for convenience in carrying on the affairs of national government. They do not, for example, bear the same relation to the union that a county does to the state, or a township to the county. A county is nothing more than a district carved out of the state for administrative convenience, and provided with such an organization and given such powers of local government as the state may choose to give it. The states, on the other hand, are not creations of the national government; their place as const.i.tuent members of the union is determined by the Federal Const.i.tution, framed by the people of the United States, and their rights and obligations are fixed by the same authority. Each state, however, determines its own form of government and decides for itself what activities it will undertake.

=Division of Powers.=--The Federal Const.i.tution has marked out a definite sphere of power for the states, on the one hand, and another sphere for the national government on the other, and each within its sphere is supreme. Upon the domain thus created for each the other may not encroach. Each is kept strictly within its own const.i.tutional sphere by the federal Supreme Court, and the balance between the union and its members is harmoniously preserved.

The states were already in existence with organized governments in operation when the national government was created. The founders of the national government conferred upon it only such powers as experience and reason demonstrated could be more effectively regulated by a common government than by a number of separate governments; they left the states largely as they were, and limited their powers only so far as was necessary to establish a more effective union than the one then existing. Experience had taught them, for example, that commerce with foreign countries and among the states themselves should be regulated by a single authority acting for the entire country: only in this way could uniformity be secured, and uniformity in such matters was indispensable to the peace and perpetuity of the union. Accordingly, the national government was vested with power over this and other matters which clearly required uniformity of regulation, and the remaining powers of government were left with the states, where they had always been. Thus it came about that the national government was made an authority of enumerated or delegated powers, while the states have reserved powers.

_Prohibitions._--It was thought wise, however, to prohibit both the national government and those of the states from doing certain things, and thus we find provisions in the Federal Const.i.tution forbidding both governments from granting t.i.tles of n.o.bility, from pa.s.sing ex post facto laws, bills of attainder, etc. Likewise the states were prohibited from entering into treaties with foreign countries, from coining money, from impairing the obligation of contracts, and from pa.s.sing laws on certain other subjects which it was clearly unwise to leave to state regulation.

=Powers of the States.=--The powers left to the states, unlike those conferred upon the national government, cannot be enumerated. They are so varied in character, and so extensive, that an attempt to enumerate them would involve cataloguing all the mult.i.tudinous business and social relationships of life. The powers of the national government seem much greater by comparison than those of the states, partly because they are set forth in the Const.i.tution and partly because of their application throughout the entire country, but in reality they are not only far less numerous but affect less vitally the great ma.s.s of the people. The powers of the states include such matters as the regulation of the ownership, use, and disposition of property; the conduct of business and industry; the making and enforcing of contracts; the conduct of religious worship; education; marriage, divorce, and the domestic relations generally; suffrage and elections; and the making and enforcement of the criminal law. In the division of governmental powers between the nation and the state, says Bryce, the state gets the most and the nation the highest, and so the balance between the two is preserved.

"An American," says Mr. Bryce, "may, through a long life, never be reminded of the federal government except when he votes at presidential and congressional elections, buys a package of tobacco bearing the government stamp, lodges a complaint against the post office, and opens his trunks for a customhouse officer on the pier at New York when he returns from a tour in Europe. His direct taxes are paid to officials acting under state laws. The state or local authority const.i.tuted by state statutes registers his birth, appoints his guardian, pays for his schooling, gives him a share in the estate of his father deceased, licenses him when he enters a trade (if it be one needing a license), marries him, divorces him, entertains civil actions against him, declares him a bankrupt, hangs him for murder; the police that guard his house, the local boards which look after the poor, control highways, impose water rates, manage schools--all these derive their legal powers from his state alone."

=Rights and Privileges of the States as Members of the Union.=--The states have certain rights and privileges which are guaranteed them by the Federal Const.i.tution, and of which they cannot be deprived by the national government without their consent.

_Republican Government._--Thus it is made the duty of the United States to guarantee to every state in the union a republican form of government, that is, a government by the chosen representatives of the people of the state. In a few cases rival governments have been set up in a state, each claiming to be the legitimate government and ent.i.tled to the obedience of the people; the one recognized by the federal authorities has always prevailed.

_Protection Against Invasion._--It is also made the duty of the national government to protect the states against invasion. This is right and proper, since the states are forbidden by the Const.i.tution to keep ships of war or troops in times of peace.

_Protection Against Domestic Violence._--Again, it is made the duty of the national government to protect the people of the states against domestic violence arising from insurrection or riots, _provided_ that application has been made by the proper state authorities. The purpose of this proviso is to remove the temptation to federal interference in state affairs for political or other reasons against the wishes of the people of the state. The ordinary procedure for the suppression of a local disturbance is for the sheriff of the county, or the mayor of the city, to make use of the local police, and if necessary he may call upon the citizens to come to his aid. If this is not effective, the governor may be called upon to order out the state militia for the suppression of the riot. If, however, the riot should spread and a.s.sume such proportions that the power of the state and local authorities is insufficient, it becomes the right and duty of the governor, or the legislature if it be in session, to call on the President of the United States for the a.s.sistance of national troops. If in the President's judgment the situation is one which warrants federal intervention, he sends a detachment of troops from a near-by military post to restore order. Many times in our history federal troops have been used to put down riots where the state authorities had shown themselves incapable of maintaining order; two recent examples being in connection with strikes among the miners of Nevada in 1907, and of Colorado in 1914.

Ordinarily the President has no lawful right to interpose in the affairs of the state by the employment of troops until he has received an application from the governor or the legislature, but if the disturbance is one which interferes with the operations of the national government or with the movement of interstate commerce, the President may intervene whenever in his opinion the situation calls for federal action. Thus during the Chicago strike riots of 1894, President Cleveland ordered a detachment of federal troops to that city against the protests of the governor, upon being a.s.sured that the strikers were interfering with the movement of the mails and with the conduct of interstate commerce and were also disregarding the writs and processes of the United States courts. The interference of the President was criticized by some persons, but the great body of citizens approved his course, and the United States Supreme Court upheld the validity of his action.

_Other Rights of the States._--Among the other rights of the states under the Federal Const.i.tution may be mentioned the right of equal representation in the senate, a right of which no state can be deprived without its consent, and the right of territorial integrity: no new state may be created within the jurisdiction of another state, nor may any state be formed by the junction of two or more states or parts of states, without the consent of the states concerned.

=Obligations and Duties of the States.=--Rights and privileges usually imply obligations, and so we find that the states owe certain duties to one another and to the union of which they are a part, and the harmony and success of the federal system are dependent in a large measure upon the performance of these duties in good faith.

_Full Faith and Credit._--First of all, each state must give full faith and credit to the acts, judicial proceedings, and records of the other states. This means, for example, that a properly authenticated copy of a will or deed duly executed in one state will be taken notice of and rights depending on it will be enforced in other states as though the instrument were made therein. Likewise, a marriage legally celebrated in one state will usually be treated as valid in another state, and the facts of a case at law will be recognized in other states without the necessity of retrial. The provision as to full faith and credit does _not_ mean that one state must enforce within its borders the laws of other states, or that its courts in reaching their decisions are bound by the decisions of the courts of its sister states. As a matter of practice, however, courts in one state in deciding difficult questions of law will examine the decisions of the courts of other states on similar points for their own enlightenment, and will show respect for these decisions, the degree of deference depending on the standing of the judges rendering the decision and upon the similarity of the laws and policies of the states concerned.

_Surrender of Fugitives from Justice._--In the next place, it is made the const.i.tutional duty of the executive of each state to surrender criminals escaping from other states, in order that they may be returned for trial and punishment in the state from which they have fled. The demand for the surrender of such fugitives is made by the governor of the state from which the criminal has fled, and the governor upon whom the demand is made ought to comply with it unless for very substantial reasons. There is no way, however, by which this obligation may be enforced, and there have been many cases where governors have refused to deliver up criminals escaping from other states--usually for the reason that, in the governor's opinion, the fugitive would not receive a fair trial in the state from which he had fled.

_Treatment of Citizens of Other States._--Still another obligation imposed by the Federal Const.i.tution on the states is that of treating the citizens of other states as they treat their own citizens, i. e., without discrimination. But this obligation has reference rather to civil rights than to political privileges. It does not mean that an illiterate man who is allowed to vote in Illinois may go to Ma.s.sachusetts and vote where an educational qualification for the suffrage is required; nor does it mean that a woman who is allowed to practice law in one state may therefore practice in another state which excludes women from engaging in that profession. What the provision does mean, is that whatever privileges and immunities a state allows to its own citizens, it must allow the citizens of other states on the same terms, and subject to the same conditions and no more. Thus a state cannot subject the citizens of other states to higher taxes than are imposed upon its own citizens.

_Other Obligations._--Finally, it goes without saying that it is the duty of each state to treat its sister states in the spirit of comity and courtesy; to carry out the mandates of the Federal Const.i.tution relating to the election of senators, representatives, and presidential electors so as to keep up the existence of the national government; and, in general, to perform in good faith all their other obligations as members of the union, without the performance of which the republic would be a mere makeshift. The existence of the states is essential to the union, and their preservation is as much within the care of the Const.i.tution as is the union itself. Indeed, the Const.i.tution in all its parts, said the Supreme Court of the United States in a famous case, looks to an indestructible union of indestructible states.

=The State Const.i.tution; how Framed.=--The governmental organization of each of the states is set forth in a written instrument called a const.i.tution. Unlike the const.i.tutions of some of the European states, which were granted by kings, and unlike, also, those of the British self-governing colonies, which were enacted by Parliament, all the American const.i.tutions now in existence were framed by const.i.tuent bodies representing the people, and in most cases they were approved by the people before they went into effect. As Mr. Bryce has remarked, the American state const.i.tutions are the oldest things in the political history of America. Before the Federal Const.i.tution was framed each of the thirteen original states had a const.i.tution of its own, most of them being framed by popular conventions chosen especially for the purpose.

Later, when a territory asked to be admitted to the union as a new state, Congress, through what is called an "enabling act," empowered the people of the territory to choose a convention to frame a const.i.tution which, when submitted to the voters and approved by them, became the fundamental law of the new state. In a number of cases, however, the people of the territory went ahead on their own initiative, and without the authority of an enabling act framed their const.i.tution and asked to be admitted, and sometimes they were admitted as though they had acted under the authority of Congress. Whenever an existing state wishes to frame a new const.i.tution for itself, the usual mode of procedure is for the legislature either to pa.s.s a resolution calling a convention, or to submit to the voters the question of the desirability of a new const.i.tution. A resolution calling a convention usually requires an extraordinary majority of both houses of the legislature, two thirds of the members being the most common rule.

=Ratification of New Const.i.tutions.=--When the draft of the const.i.tution has been completed by the convention, it is usually submitted to the voters of the state at a general or a special election, and if it is approved by a majority of those voting on the const.i.tution, or (in some states) of those voting at the election, it supersedes the old const.i.tution and goes into effect on a day prescribed. In some instances, however, new const.i.tutions were not submitted to popular vote; instead, the convention a.s.sumed the right to put them into effect without popular approval. Of the twenty-five state const.i.tutions adopted before the year 1801, only three were submitted to the voters for their approval, but as time pa.s.sed the practice of giving the people an opportunity to approve or reject proposed const.i.tutions became the rule.

In the twenty years between 1890 and 1910 eight new const.i.tutions were submitted to the people, and only five were put into force without popular ratification, namely, those of Mississippi (1890), South Carolina (1895), Delaware (1897), Louisiana (1898), and Virginia (1902).

=Frequency of New Const.i.tutions.=--The frequency with which the states revise their const.i.tutions varies in different sections of the country.

In New England new const.i.tutions are rare, while in the states of the West and the South new const.i.tutions are framed, on an average, at least once in every generation and sometimes oftener. Since the Revolution more than two hundred const.i.tutions have been made by the states, though some of them never went into operation. Several of the states within a period of less than one hundred years have had as many as six, and a few have had even more. The const.i.tution of Ma.s.sachusetts of 1780, with several subsequent amendments, is still in force; but outside of New England there are few const.i.tutions that are more than thirty years old.

Some of the states, indeed, have inserted provisions in their const.i.tutions making it the duty of the legislature at stated intervals to submit to the voters the question of calling a convention to revise the existing const.i.tution or to adopt an entirely new one. In this way the people are given an opportunity to determine whether the const.i.tution under which they live shall be revised or superseded by a new one, independently of the will of the legislature.

=Contents of State Const.i.tutions.=--The early state const.i.tutions were brief doc.u.ments and dealt only with important matters of a fundamental and permanent character. They were remarkably free from detail and rarely contained more than 5,000 words. As time pa.s.sed, however, there was an increasing tendency to incorporate in them provisions in regard to many matters that had formerly been left to the legislature to be regulated by statute, so that some of the const.i.tutions of the present day are bulky codes containing detailed provisions concerning many matters that might more properly be dealt with by statute. The const.i.tution of Virginia, for example, has expanded from a doc.u.ment of a few pages to one of seventy-five, from an instrument of about 1,500 words to one of more than 30,000. The present const.i.tution of Alabama contains about 33,000 words; that of Louisiana, about 45,000; and that of Oklahoma, about 50,000. The Virginia const.i.tution contains a lengthy article on the organization of counties; one on the government of cities, const.i.tuting a code almost as elaborate as a munic.i.p.al corporations act; one on agriculture and immigration; one on corporations, containing fourteen sections; one on taxation and finance, etc. The const.i.tution of Oklahoma contains an article of seven sections on federal relations, one of which deals with the liquor traffic; elaborate provisions regarding the referendum and initiative; a section describing the seal of the state; a detailed enumeration of those who are permitted to accept railroad pa.s.ses; an article on insurance; one on manufactures and commerce; and one on alien and corporate ownership of lands.

_Parts of a Const.i.tution._--A typical const.i.tution consists of several parts: (1) a preamble; (2) a bill of rights; (3) a series of provisions relating to the organization of the government and the powers and duties of the several departments; (4) a number of miscellaneous articles dealing with such matters as finance, revenue and debts, suffrage and elections, public education, local government, railroads, banks, and other corporations generally; (5) an article describing the procedure by which amendments may be proposed and ratified; and (6) a schedule. Many const.i.tutions contain an article defining the boundaries of the state, and most of them one on the distribution of the powers of government.

Some of the newer const.i.tutions also prescribe numerous limitations upon the legislature, so great is the popular mistrust of legislatures to-day; while others lay down various rules as to the procedure of the legislature. The schedule contains provisions for submitting the const.i.tution to the voters and making necessary arrangements for putting the new const.i.tution into effect.

=The Bill of Rights=, says Bryce, is historically the most interesting part of the state const.i.tution, and if we may judge by the s.p.a.ce devoted to these provisions and the attention paid to their framing, they const.i.tute a very important part of the const.i.tution. In a sense they are the lineal descendants of great English enactments like Magna Charta, the Bill of Rights, and the Act of Settlement, and of the various declarations of the Revolutionary Congresses in America. They consist of limitations upon the government and of statements of the fundamental rights of man.

_Some Provisions of the Bills of Rights._--Examining these bills of rights, we find that they all contain declarations in favor of freedom of religious worship, freedom of a.s.sembly, freedom of speech and of the press, and most of them forbid the establishment of a state church or the appropriation of money for the establishment or support of any religious denomination. Most of them contain declarations providing for trial by jury in criminal cases, indictments by grand jury, the privilege of the writ of habeas corpus, the right of the accused to a speedy and public trial; a declaration of the right of citizens to bear arms; the prohibition of excessive bail, cruel and unusual punishments, general search warrants, and imprisonment for debt; the prohibition of t.i.tles of n.o.bility, ex post facto laws, and bills of attainder[9]; and provisions forbidding the taking of private property except for public purposes and then only when just compensation is made.[10] Many of them contain philosophical enunciations of political doctrines such as the a.s.sertion that all governments originate with the people, and are inst.i.tuted solely for their good; that all men are equal; that all power is inherent in the people; and that the people have at all times the right to alter, reform, or abolish their government. Some of the newer const.i.tutions declare that monopolies and perpetuities are contrary to the principles of free government; that every citizen shall be free to obtain employment wherever possible; that a long lease of office is dangerous to the liberties of the people; that aliens shall have the same rights of property as citizens; and so on.

[9] An ex post facto law is retroactive, making criminal an act that was not a crime when committed, or increasing the punishment for past crimes. A bill of attainder is a law convicting an accused person without a trial, and imposing on him the penalties of treason.

[10] The inherent power of the state to take private property for public use is called the right of eminent domain.

The real importance of the bills of rights, now that executive tyranny is a thing of the past, is not very great.

=Amendment of State Const.i.tutions.=--The practice of inserting in the const.i.tution many provisions which are temporary in character, makes frequent alteration a necessity if the const.i.tution is to meet the rapidly changing needs and conditions of the state. Some of the early const.i.tutions contained no express provision for their own amendment, but as time pa.s.sed changes became manifestly necessary, and in time they were all amended or supplanted entirely by new ones, notwithstanding the absence of amending provisions. Ultimately the advantage of pointing out in the const.i.tution a legal and orderly way of amendment came to be generally appreciated, and at the present time all of the const.i.tutions contain amending provisions. These clauses provide that amendments may be proposed, either by a convention called by the legislature, or by the legislature itself, usually by an extraordinary majority; in either case the proposed amendment must be submitted to the voters for their approval, and it becomes a part of the const.i.tution only if ratified by a majority of those voting on the proposed amendment or, in some states, by a majority of those voting at the election at which the proposed amendment is submitted. A new method of amendment by popular initiative was adopted in Oregon in 1902. According to this method a proposed amendment may be framed by the people by pet.i.tion and submitted to a popular vote without the necessity of the intervention of the legislature in any form.

In spite of the restrictions imposed, most of the const.i.tutions are frequently amended. During the two decades from 1900 to 1919, 1500 amendments were proposed by the legislatures of the several states, or by popular initiative, and of these about 900 were ratified. At the general election of 1918, no less than 130 amendments were voted on by the people of the different states, and a number of others were awaiting the action of the legislatures soon to meet. In five western states alone 270 amendments were submitted from 1914 to 1919.

=References.=--BEARD, American Government and Politics, chs.

xxii-xxiii. BRYCE, The American Commonwealth (abridged edition), chs. x.x.xiv-x.x.xv. DEALEY, Our State Const.i.tutions, chs. ii-iii.

HART, Actual Government, ch. vi. HINSDALE, The American Government, chs. xl, xli, xlix, l. WILSON, The State, secs. 1087-1095.

WILLOUGHBY, Rights and Duties of Citizenship, ch. x. WILLOUGHBY, The American Const.i.tutional System, chs. ii-x.

=Doc.u.mentary and Ill.u.s.trative Material.=--1. THORPE's Const.i.tutions and Organic Laws, or POORE's Charters and Const.i.tutions, both published by the Government Printing Office. 2. Pamphlet copies of state const.i.tutions can usually be obtained from the secretaries of state of the various states. 3. The legislative manual of the state, where usually a review of the const.i.tutional history of the state may be found.

RESEARCH QUESTIONS

1. In what two senses is the word "state" used? In what sense is New York a state and in what sense is it not?

2. Were the states ever sovereign? What were the two views in this country prior to the Civil War in regard to the sovereignty of the states?

3. The const.i.tution and laws of the United States are declared to be supreme over those of the states; what is the meaning of that provision?

Does that mean that any law pa.s.sed by Congress will override a conflicting law pa.s.sed by a state, even though the law pa.s.sed by the state is clearly within its powers?

4. Distinguish between _reserved_ powers and _delegated_ powers.

5. Do you believe the powers of the national government should be increased so as to include the regulation of such matters as marriage and divorce, the business of corporations, factory labor, and insurance?

6. What is the purpose of the commissions on uniform legislation in the different states, and what are they seeking to accomplish? Is there such a commission in your state?