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GROWTH OF AMERICAN STATE
CONSTITUTIONS

FROM 1776 TO THE END OF THE YEAR 1914



BY



JAMES QUAYLE DEALEY, Pn.D.

PROFESSOR OF SOCIAL AND POLITICAL SCIENCE IN BROWN UNIVERSITY



GINN AND COMPANY

BOSTON NEW YORK CHICAGO LONDON
ATLANTA DALLAS COLUMBUS SAN FRANCISCO



COPYRIGHT, 1915, BY
JAMES QUAYLE DEALEY



ALL RIGHTS RESERVED



jprcgfl



C.INM AND COMPANY PRO
PK1HTORS BOSTON U.S.A.



TO G. B. D.
NOS CORDA FRATRES



328340



PREFACE

The basis for this study was a series of articles prepared
at the suggestion of President E. Benjamin Andrews and
syndicated to the newspapers in the year 1 899 under the head-
ing "Tendencies in Recent State Constitutions." In 1906
the articles were revised and published in the Galveston
Daily News and the Dallas Morning Neivs, and later were
published as a pamphlet for general circulation. In 1907
the series was enlarged and published as a supplement num-
ber in the Annals of the American Academy of Social and
Political Science, March, 1907. This pamphlet has now
been revised so as to include the changes of the last seven
years, and ten additional chapters have been added, more
than trebling the original material.

Part I traces the history of the state constitutions so as to
show the trend of nearly a hundred and forty years in the
constitutional development of the commonwealths of the
Union. Part II is in general the revision of the supple-
ment to the Annals, but with many omissions and additions.
Part III includes constructive suggestions as to the probable
trend of changes in state constitutions during the next few
years. The work as a whole aims to call attention to the
great importance of these fundamental laws, and hence to
the necessity of devoting to their improvement far more
attention in the future than has been given to them in the
past. In many respects these laws concern more vitally the
interests of the average citizen than does the national con-
stitution, so that the increasing attention paid to them in



vi PREFACE

recent years is an excellent illustration of a growing civic
interest in local government and in the principles of democ-
racy. This interest is greatly stimulated by the increasing
attention given to state constitutions and government by the
departments of history and political science in so many
American colleges and universities. For such classes this
work possibly may be considered worthy of introduction as
a textbook. The author furthermore hopes that citizens and
members of legislatures and constitutional conventions may
find these chapters to some slight extent helpful in further-
ing a knowledge of our state political institutions.

Acknowledgment is cheerfully given to the Legislative
Reference Bureau of the State of Rhode Island for kindly
and frequent assistance in securing information in respect
to constitutional amendments, and to the Annals for per-
mission to republish its Supplement revised.

J. Q. DEALEY
BROWN UNIVERSITY



CONTENTS
PART I

HISTORY OF STATE CONSTITUTIONS

CHAPTER PAGE

I. STATE CONSTITUTIONS IN RELATION TO THE FEDERAL

GOVERNMENT AND THE UNION i

II. ADMISSION or STATES INTO THE UNION . . -13

III. THE FIRST STATE CONSTITUTIONS (1776-1800) . . 24

IV. GROWTH OF STATE CONSTITUTIONS DURING THE NEXT

THIRTY YEARS (1801-1830) .... 40

V. THE PERIOD OF DEVELOPING DEMOCRACY (1831-1860) 47
VI. SECESSION, RECONSTRUCTION AND READJUSTMENT

(1861-1885) 56

VII. SECESSION, RECONSTRUCTION AND READJUSTMENT

(1861-1885) (Continued) 70

VIII. RECENT CHANGES IN CONSTITUTIONS (1885-1914) . 89

PART II

PROVISIONS OF EXISTING STATE
CONSTITUTIONS

IX. THE WRITTEN CONSTITUTION AND ITS BILL OF RIGHTS 116

X. RELIGIOUS PROVISIONS OF THE STATE CONSTITUTIONS 128

XI. AMENDMENT AND REVISION OF CONSTITUTIONS . . 139

XII. SUFFRAGE AND ELECTIONS . . . . . 150

XIII. THE EXECUTIVE DEPARTMENT . . . . .160

XIV. THE JUDICIAL DEPARTMENT 172

vii



viii CONTENTS

CHAPTER PAGB

XV. ORGANIZATION OF THE LEGISLATIVE DEPARTMENT

AND ITS PROCEDURE 182

XVI. POPULAR REPRESENTATION IN STATE LEGISLATURES 194
XVII. LIMITATIONS ON THE LEGISLATURE . . . .214
XVIII. CONSTITUTIONAL REGULATION OF IMPORTANT INTER-
ESTS 229

XIX. CONSTITUTIONS OF THE NEW ENGLAND STATES . 242



PART III

TREND IN STATE CONSTITUTIONS

XX. REVIEW OF DEVELOPMENT SINCE 1776 . . . 254
XXI. THE ELECTORATE, LEGAL SOVEREIGNTY AND THE

LEGISLATURE 270

XXII. THE EXECUTIVE, THE ADMINISTRATIVE AND THE

JUDICIARY 285

BIBLIOGRAPHY 297

INDEX 303



GROWTH OF AMERICAN
STATE CONSTITUTIONS



PART I
HISTORY OF STATE CONSTITUTIONS



CHAPTER I

STATE CONSTITUTIONS IN RELATION TO THE
FEDERAL GOVERNMENT AND THE "UNION"

IN writing about or discussing American constitutional
history there is a tendency to magnify unduly the impor-
tance of the federal government in comparison with the
governments of the states. This tendency was natural
enough in those years marked by heated discussions of
states' rights, nullification, and secession, and has even its
modern justification in view of the vast powers wielded by
the federal government in the formulation of national and
international policies. The idea of a federation is even yet
so unfamiliar, that almost unconsciously a writer tends to
fix his attention on what may be considered as the spec-
tacular aspects of federal government, to the neglect of the
more prosaic activities and powers of the constituent states.
These, in consequence, seem to be mere provinces or admin-*
istrative districts, that through some inscrutable act of
Providence, have somehow managed to acquire powej^g which



AMKRICAV STATE CONSTITUTIONS



interfere with, hinder, and obstruct the

tralizing, and unifying policies of the federal government^

THE STATES AND THE UNION l

Unquestionably in any discussion of the American gov-
ernmental system, the federal government with its great
general powers and its control over international affairs
should never be slighted ; yet on the other hand it should
not be forgotten that, while any particular state may
seem relatively insignificant, the states unitedly perform
by far the largest part of governmental activities, and raise
through taxation an amount much larger than that levied
under the authority of congress. Furthermore, the states
do not derive their powers from the federal government, as,
for example, the departments of France do from their
national government, but instead, both the states and the
federal government derive their powers directly from the
Union and in their relationship are coordinate one to the
other. Because of this fact it is really impossible to under-
stand the American constitutional system as a whole, unless
one has a knowledge of the constitutions of the several states
in the Union, so as to comprehend their attitude and policy
towards the political problems arising in the government of
the states. Moreover, the several policies of forty-eight
different states towards the numerous problems of govern-
ment are in many respects so diverse, and have so widely
varied at different periods, that the state constitutions,
which embody these variations, are in themselves full of
interest, as a sort of cinema toscope of the times, and hence
do not deserve the neglect which up to quite recent times

1 See, Johns Hopkins Studies, Introduction to the Study of the Constitu-
tional and Political History of the States, by J. Franklin Jameson. Series
IV. Also, article by Woodrow Wilson, referred to at end of Chap. XXIII.



STATE CONSTITUTIONS AND THE UNION 3

has been their portion. For it must be remembered that
federal powers and federal problems are widely different
from those that occupy the attention of the states. The'
really distinctive feature of the federal government by con-
trast with the states is that its powers are carefully enu-
merated and delegated, so that any power whatsoever,
rightly used by any one of the three federal departments of
government, must be based on an expressed or clearly im-
plied authorization in the national constitution. By contrast
all other governmental powers not thus delegated to the
federal government are by constitution declared to belong
"to the states respectively or to the people" excepting a few
prohibitions plainly stated in the constitution itself. 1

Thus the great mass of governmental powers in regulation
of purely domestic affairs within the borders of the several
states, such as the detail of local government, education,
sanitation and policing, is by constitution delegated to the
states themselves ; and in addition some extremely impor-
tant sovereign powers fall to their share. In fact the states
under the constitution are so powerful in their collective
capacity that the federal government by comparison seems
impotent. By the terms of the national constitution the

1 Readers of constitutional history are familiar with national struggles
over the doctrines of implied powers and strict interpretation. The older
issues of this sort are practically settled. In recent years the discussion
assumes a newer aspect : the United States of America, being a sovereign
state, has in its possession all possible national powers. Since the federal
government has by delegation certain fundamental national powers of the
Union, such as the war and treaty powers, by implication it may use, when
necessity arises, any other national power that may be shown to be for the
general welfare, even though in so doing, it seems to trespass on powers
supposedly in the possession of the states. An opponent to this newer
doctrine of implied powers would argue that particular powers only are
delegated to the federal government, and that others if desired must be
obtained by the consent of the coordinate partner, the states, through an
amendment to the constitution.



4 AMERICAN STATE CONSTITUTIONS

states formulate their own fundamental law and derive
their powers directly from the Union. The federal govern-
ment therefore by no constitutional possibility can add to
or diminish the powers of the states, 1 or deprive any one of
them permanently of its equal status in the Union. 2 The
Union under the constitution is itself indestructible and is
composed of indestructible states, 3 but the federal govern-
ment has no such status. Two thirds of the states have the
right to have a convention called for the purpose of pro-
posing amendments to the constitution, and these when
ratified by the affirmative votes of three fourths of all the
states become part of the constitution. Such amendments
might alter or even destroy any part or all of the federal
government, substituting for it a new form of government,
organized on such principles and in such manner as would
seem best to the states and most likely to effect their safety
and happiness. 4 Such a contingency is in no respect an-
ticipated, and legally, as already said, the federal govern-
ment and the states collectively are in theory coordinate,
since each traces its powers to the national constitution
and neither is authorized to interfere with the rights of the
other as denned by the constitution and umpired by the

1 It is understood that there are certain concurrent powers, such as that
in respect to bankruptcy, in which the extent of a state's jurisdiction seems
to be determined by the action of the federal government, but in fact the
state's authority to act in the matter is derived from the constitution, not
from any act of congress. The federal government cannot delegate to the
states any power exclusively given to it, but in the case of concurrent powers
it has the right to determine how these may be best shared so as to insure
the general welfare.

8 A rebellious state when conquered may have its affairs placed into the
hands of a military governor as a sort of " receiver, " but only for the purpose
of reorganizing a constitutional form of government, so that the state may
resume its place in the Union.

'Texas vs. White, 7 Wallace, 700 (1868).

4 Declaration of Independence, first two paragraphs.



STATE CONSTITUTIONS AND THE UNION 5

supreme court of the United States. Yet if by any possi-
bility there should arise friction or open antagonism be-
tween these coordinate parts, the states so obviously control
the really important sovereign powers of the United States,
that the federal government is seen to be a mere govern-
mental agency, organized to serve the states and to assist
them in expressing the national will. In short, the states
collectively could destroy at short notice the entire federal
government, but this by contrast, with all of its powers,
could not deprive even Nevada (our pettiest state) of any
one of its constitutional rights, nor of its place in the Union.
This coordinate relationship between state and federal
government is best seen when their respective laws seem to
be in conflict. If by chance a state constitution or some
legislative statute in harmony with it happens to conflict
with an act of congress, the national supreme court does
not assume that ipso facto the state law is unconstitutional ;
nor on the other hand that the act of congress is unconsti-
tutional. Rather it turns to the national constitution,
which is the fundamental law for both state and federal
government, and determines from this whether congress or
the state has exceeded its powers in legislation, and then
renders its decision accordingly. Thus the states in the'
performance of their legal powers, pass statutes, administer
the law, supervise local government, and adjudicate cases,
without interference from the federal government, which
in its turn performs its duties without hindrance from the
individual states, even though, as already explained, these
collectively are autocratic and may wield at will the full
sovereign powers of the nation. 1

1 The relationship indicated in the preceding paragraphs between the
Union, the States, and the Federal Government, may be illustrated by the
three following diagrams, explanatory of these relationships :



AMERICAN STATE CONSTITUTIONS



THE PRIORITY OF THE STATES

From the preceding part of this chapter one might be
prepared to admit that from the legal point of view at
least, the study of American state constitutions ought not
to be neglected. There is however another aspect of this
question that should not be ignored. From the historical
standpoint state constitutions have a real significance
since they preceded in time the present national constitu-
tion, which in fact embodies in its most essential features a
type of governmental organization already familiar to the
states of the revolutionary period through their colonial
governments and their first constitutions. For, by the
time the federal convention met in 1787, the dominant
features of American constitutionalism were fairly well



I. The constitution, or funda-
mental law of the United
States of America was



and may be



II. The United States of America is
a sovereign state, organized as
a federation, which is made
up of



(a) formulated by (i) the federal

convention of 1788, cooperat-
ing with and acting in place
of the continental congress;
(2) the several ratifying state
conventions, made up of rep-
resentatives of the people,
cooperating with and acting in
place of the state legislatures.

(b) amended by the joint action of

(1) congress (or, if two thirds
of the states so prefer, by a
national convention), and

(2) the state legislatures (or,
if congress so prefers, by state
conventions).

(1) The federal government,

(2) The forty-eight states or com-

monwealths.

(These two parts are coordi-
nate one to the other, but are
both subordinate to the United
States of America, or the
"Union.*')



STATE CONSTITUTIONS AND THE UNION



established in most of the thirteen states. Fundamental
law had become or was becoming differentiated from
statutory law ; and was formulated into a definite, written
document, amended by a more complex and difficult pro-
cedure than that used for ordinary legislation ; the consti-
tutional convention had become a familiar institution and
through the example of Massachusetts the principle was



III. From another standpoint the
government of the United
States of America may be con-
sidered as divisible into four
branches or departments.



(1) The executive: consisting of

(a) the president and the heads
of the administration, (7>) the
forty-eight state governors
and the heads of their adminis-
trative systems.

(2) The legislative: consisting of

(a) the national congress, and

(b) the states' lawmaking
agencies (legislatures, consti-
tutional conventions, the elec-
torate when using powers of

"initiative" and "referen-
dum").

(3) The judicial : consisting of

(a) the supreme court and the
inferior courts of the United
States, and (b) the supreme
and other courts of the states.

(4) The electorate (using executive

powers in the choice and recall
of officials, legislative powers
through the initiative and
referendum, and judicial
powers through jury service) :
consisting of (a) the electorate
in national elections, and
(6) the several electorates in
the states.

(Note). It will be remembered that
the qualifications of both the
natipnal and the state elec-
torates are determined by the
states, subject to the few regu-
latory provisions of the
national constitution.



8 AMERICAN STATE CONSTITUTIONS

gaining ground that fundamental law needed for its validity
a ratification by the electorate on referendum. Moreover,
the three great departments of government were separated
in accordance with English and colonial custom, a much
more important influence than the much-discussed theory
of Montesquieu ; 1 the governor's veto was coming into use ;
state judiciaries had on several occasions assumed the right
to declare acts of state legislatures to be unconstitutional ; 2
and formal bills of rights were regularly incorporated into
the constitutions as checks on possible legislative tyranny.
The federal convention, therefore, in formulating a na-
tional constitution did not on the whole originate anything
really new in government, but rather carefully culled from
the customs and experiences of the states those provisions
that seemed to work best in practice and united these into as
logical a document as the necessity for compromise per-
mitted, with such additions as seemed necessary for the
rounding out of a national system. 3 It is incorrect, there-
fore, to say, as some do, that the national constitution has
been to any considerable extent the model followed by
the states after the formation of the Union, as they assumed
statehood or revised or amended their constitutions.

1 Spirit of Laws, Book xi. The theory of Montesquieu would really
separate the three departments so that each would use those powers that
properly belong to it, the harmony of the whole being secured by a care-
fully devised "check and balance" system. This theory finds its best
exemplification in the federal government, in which system the executive
powers are for the most part really in the possession of that department of
government. In the states by contrast, as in the English parliamentary
system, the division of powers is formal and rather nominal, since as a rule
the lawmaking department has a quite complete control over administra-
tion (an executive power), and shares with the executive in the exercise of
most of the few powers confided to him by constitution.

2 See, Bondy, Separation of Powers, chap. vii. ; and Haines, American
Doctrine of Judicial Supremacy, especially Part II.

3 See, Bryce, American Commonwealth, Vol. I. pp. 670-3, note to
chap. iv.



STATE CONSTITUTIONS AND THE UNION 9

For, a state when revising its constitution rarely departs
to any considerable extent from its previous type of or-
ganization. Even when the first state constitutions were
formed, they were in the main merely the colonial charters
and governmental organizations, translated with necessary
modifications into state constitutions. 1 This same state-
ment would hold true also of the first constitutions of Con-
necticut (1818) and Rhode Island (1842), which in substance
are modifications of the charters obtained from King Charles
in the seventeenth century. So likewise the Southern
Confederacy, in formulating a constitution in 1861, merely
adapted the national constitution to the new order of things.
A similar principle holds in respect to the constitutions of
new states. These are largely determined by their former
historical connection, 2 or by their territorial framework of
government, or by the influence on a constitutional conven-
tion of prominent members who are familiar with the con-
stitutions of the states of their birth. 3 Thus the real
models consistently followed in making or revising consti-
tutions have been the constitutions of existing states and
territories. In the case of states created from national
territory, the great model contained in the famous Ordinance
of 1787 became the basis for later territorial organization
and thus impressed its principles on the states of the north-
west and later on the region west of the Mississippi River. 4

1 See, Annals, Vol. I. April, 1891, Article by Professor Morey on the
Genesis of a Written Constitution.

2 As, for example, Kentucky and West Virginia with Virginia, or Maine
with Massachusetts.

3 The constitution formed, for instance, in Texas, in April, 1833, was an
almost verbatim reproduction for the most part, of the constitution of
Tennessee. Houston, the chairman of the Committee on Constitution, had
also been governor of Tennessee.

4 The Ordinance, for example, required that the territory have three
departments of government; a governor, a court, and a legislature, and



io AMERICAN STATE CONSTITUTIONS

On the other hand, it might be said in behalf of the theory of
the imitation of the national constitution by the states,
that in so far as certain features found in the constitutions
of the states under the confederation were selected for
insertion in the national constitution, these, so to speak,
became standardized, thus forming natural patterns for
later imitation.

FLEXIBILITY OF STATE CONSTITUTIONS
There is, finally, another reason why state constitutions
are deserving of larger study. The national constitution is
a rigid document amended only with great difficulty, so that
of necessity needed alterations, if made at all, must usually
come through legal interpretation and judicial decision.
This method of modifying fundamental law by what is
virtually judicial legislation has its natural limitations, and
in consequence the fundamentals of federal organization
and jurisdiction remain practically the same as they were
one hundred and twenty-five years ago. On the other
hand, the older states have for the most part, freed them-
selves from difficult amending processes, and the newer
states invariably prefer a simple method of amendment
and revision. In consequence, the meaning and develop-
ment of the national constitution is best traced through
the many authoritative decisions made by the national
supreme court in interpreting the constitution; but by
contrast the interpretations given by state supreme courts
of their respective constitutions are of far less permanent
importance, since the real history of the constitutional

that the last named should be based on a "proportionate representation of
the people." It also provided for religious liberty, a system of education,
and the guaranties of jury trial and habeas corpus ; forbade slavery, and
in>i>tc-d that in the formulation of any future constitution, the government
should be republican in spirit and in form.



STATE CONSTITUTIONS AND THE UNION n

development of the states can best be traced decade by dec-
ade in the many amendments and revisions made so as to
satisfy popular demands for reforms in existing systems.
Thus from state constitutions far better than from the
national constitution can be traced the really important
stages in the march of American democracy since 1776,
seeing that the states are the agencies through which the
ordinary daily life of the citizens is regulated and hence
they are much more closely in touch with popular demands.
Through the varying decisions of the national supreme
court one may study the movements of national unity,
expansion, centralization, imperialism, and foreign policy ;
but in the state constitutions can best be studied the class
struggle between the intrenched conservatism of propertied



Online LibraryJames Quayle DealeyGrowth of American state constitutions from 1776 to the end of the year 1914 [electronic resource] → online text (page 1 of 24)