Problems in American Democracy Part 86

18. Did the framers of the Const.i.tution intend that the Supreme Court should pa.s.s upon the const.i.tutionality of Acts of Congress? (See Beard, _The Supreme Court and the Const.i.tution_.)

19. Do you believe that there should be any restriction upon the present power of the Supreme Court to pa.s.s upon the const.i.tutionality of Acts of Congress?

20. In the leading European countries what corresponds to our Supreme Court is divided into a number of sections. Do you believe that our Supreme Court ought to be reorganized on a similar plan? (See Munro, _The Government of the United States_, page 369.)

B. STATE AND LOCAL GOVERNMENT

CHAPTER XLV

CONSt.i.tUTIONAL BASIS OF STATE GOVERNMENT [Footnote: For a fuller discussion of the const.i.tutional basis of state government, see Chapter XXII of Beard's _American Government and Politics_. ]

573. CONSt.i.tUTIONAL LIMITATIONS ON STATE GOVERNMENTS.--Under the Articles of Confederation the states exercised practically sovereign powers; in the interests of a strong National government the Const.i.tution adopted in 1789 distinctly limited the scope of state government. The Federal Const.i.tution 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 const.i.tutional 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 const.i.tutional 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 pa.s.s 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 pa.s.s 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 pa.s.s 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 const.i.tution, 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 unconst.i.tutional 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 const.i.tution. Though they are limited by the Federal Const.i.tution 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. CLa.s.sIFICATION OF STATE CONSt.i.tUTIONS: ACCORDING TO AGE.--Each of the forty-eight states in the Union has a written const.i.tution. To bring out the fundamental similarities and differences among the various state const.i.tutions, these doc.u.ments may be cla.s.sified in two ways, first as to age, and second, in the light of democratic development.

If state const.i.tutions are cla.s.sified on the basis of age, it will be noted that the const.i.tutions of Ma.s.sachusetts, Connecticut, Rhode Island, and other New England states show signs of having been strongly influenced by colonial precedents. Next come const.i.tutions which in form and general content stand midway between the earlier New England const.i.tutions and those of more recent years. The const.i.tutions of New York (1894), Pennsylvania (1873), Indiana (1851), Wisconsin (1848), Kentucky (1891), Minnesota (1857), and Iowa (1857), are examples. Next come those const.i.tutions 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 const.i.tutions in which there has been a more or less radical departure from the precedents set in the older commonwealths.

576. CLa.s.sIFICATION OF STATE CONSt.i.tUTIONS: IN THE LIGHT OF DEMOCRATIC DEVELOPMENT.--Between 1776 and 1800 American state const.i.tutions were generally brief and conservative. Between 1800 and 1860 the growing tendency toward democratic control resulted in the formation of state const.i.tutions which were more and more liberal. During this period fear of the ma.s.ses 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 const.i.tutions 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 const.i.tutions is to continue in the direction of the above-mentioned reforms.

A. THE PARTS OF A STATE CONSt.i.tUTION

577. THE BILL OF RIGHTS.--A vital part of a state const.i.tution is the bill of rights, roughly corresponding to the first ten amendments to the Federal Const.i.tution. 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 a.s.sembly, 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 a.s.semble and pet.i.tion 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 const.i.tution deals with the distribution of powers, the limitations upon state officials and other elements in the framework of government. Especially in the more recent const.i.tutions 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 const.i.tution 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 munic.i.p.al government to the state government.

This part of the const.i.tution 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 const.i.tution 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 princ.i.p.al in the case of debts which shall be incurred.

580. CONTROL OF ECONOMIC INTERESTS.--The more recent state const.i.tutions 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 const.i.tution 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 const.i.tutions 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 const.i.tution deals with the general welfare. Such vital concerns as the public school system are dealt with. In a typical western state, for example, the const.i.tution 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 doc.u.ment sets aside certain revenues for educational purposes.

The safeguarding of the public health, and detailed provision for the creation and maintenance of public inst.i.tutions for the dependent, defective, and delinquent cla.s.ses, are other concerns of this part of the state const.i.tution.

582. PROVISION FOR AMENDMENT.--In about two thirds of the states the const.i.tution provides for its own amendment by a const.i.tutional convention composed of delegates elected by the voters of the state.

The convention method is universally employed when a new const.i.tution is desired. Sometimes the state const.i.tution 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 const.i.tution to be submitted to the people for approval.

Another common way of amending the state const.i.tution, found in every state except New Hampshire, is through legislative action subsequently ratified by popular vote. By this method separate const.i.tutional amendments may be adopted, without necessitating a wholesale revision of the const.i.tution. 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 const.i.tution. This is through the Initiative and Referendum. [Footnote: The general question of the Initiative and Referendum is treated in Chapter x.x.xVII.] In Oregon, for example, 8 per cent of the legal voters may pet.i.tion for a proposed amendment to the const.i.tution. The proposal is then submitted to the voters, and if it receives a majority of all votes cast, it becomes part of the state const.i.tution. Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, and other states allow this type of const.i.tutional amendment.

QUESTIONS ON THE TEXT

1. What are the chief limitations imposed upon state governments by the Federal Const.i.tution?

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

3. Cla.s.sify state const.i.tutions on the basis of age.

4. Discuss the cla.s.sification of state const.i.tutions 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 const.i.tution.

7. What provision for state finances does a typical state const.i.tution contain?

8. What are some of the provisions in state const.i.tutions concerning economic interests?

9. How may a state const.i.tution provide for the general welfare?

10. Describe the three ways in which state const.i.tutions 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 const.i.tutions"?

(Guitteau, page 86.) 2. What is the relation of present-day state const.i.tutions to the original colonial charters? (Munro, page 404.) 3.

Distinguish between the "const.i.tuent" and the "law-making" power.

(Munro, page 405.) 4. Into what two parts may the early state const.i.tutions be divided? (Guitteau, page 86.) 5. Discuss the check and balance system as provided for in the const.i.tutions 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 const.i.tution of Oklahoma say concerning the writ of _habeas corpus_?