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 mass 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
constituent members of the union is determined by the Federal
Constitution, 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 Constitution 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 constitutional 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 Constitution forbidding both
governments from granting titles of nobility, from passing 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 passing 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 multitudinous 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 Constitution 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 mass 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 constituted 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 Constitution, 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 entitled
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 Constitution 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 assume 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 assistance 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 assured 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 Constitution 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 constitutional 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 Constitution 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
Massachusetts 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 Constitution
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
Constitution as is the union itself. Indeed, the Constitution 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 Constitution; how Framed.=--The governmental organization of
each of the states is set forth in a written instrument called a
constitution. Unlike the constitutions 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 constitutions now in existence were framed by constituent
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 constitutions are the oldest things in the political
history of America. Before the Federal Constitution was framed each of
the thirteen original states had a constitution 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 constitution
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 constitution 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 constitution for itself, the usual mode of procedure is for
the legislature either to pass a resolution calling a convention, or to
submit to the voters the question of the desirability of a new
constitution. 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 Constitutions.=--When the draft of the constitution
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 constitution, or (in some
states) of those voting at the election, it supersedes the old
constitution and goes into effect on a day prescribed. In some
instances, however, new constitutions were not submitted to popular
vote; instead, the convention assumed the right to put them into effect
without popular approval. Of the twenty-five state constitutions adopted
before the year 1801, only three were submitted to the voters for their
approval, but as time passed the practice of giving the people an
opportunity to approve or reject proposed constitutions became the rule.
In the twenty years between 1890 and 1910 eight new constitutions 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 Constitutions.=--The frequency with which the states
revise their constitutions varies in different sections of the country.
In New England new constitutions are rare, while in the states of the
West and the South new constitutions are framed, on an average, at least
once in every generation and sometimes oftener. Since the Revolution
more than two hundred constitutions 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 constitution of Massachusetts of 1780, with
several subsequent amendments, is still in force; but outside of New
England there are few constitutions that are more than thirty years old.
Some of the states, indeed, have inserted provisions in their
constitutions 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 constitution or to adopt an entirely new one. In this way
the people are given an opportunity to determine whether the
constitution under which they live shall be revised or superseded by a
new one, independently of the will of the legislature.
=Contents of State Constitutions.=--The early state constitutions were
brief documents 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 passed, 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 constitutions of the present
day are bulky codes containing detailed provisions concerning many
matters that might more properly be dealt with by statute. The
constitution of Virginia, for example, has expanded from a document 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 constitution of Alabama
contains about 33,000 words; that of Louisiana, about 45,000; and that
of Oklahoma, about 50,000. The Virginia constitution contains a lengthy
article on the organization of counties; one on the government of
cities, constituting a code almost as elaborate as a municipal
corporations act; one on agriculture and immigration; one on
corporations, containing fourteen sections; one on taxation and finance,
etc. The constitution 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 passes; an article on insurance; one on
manufactures and commerce; and one on alien and corporate ownership of
lands.
_Parts of a Constitution._--A typical constitution 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
constitutions 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 constitutions 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
constitution to the voters and making necessary arrangements for putting
the new constitution into effect.
=The Bill of Rights=, says Bryce, is historically the most interesting
part of the state constitution, and if we may judge by the space devoted
to these provisions and the attention paid to their framing, they
constitute a very important part of the constitution. 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 assembly, 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
titles of nobility, 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
assertion that all governments originate with the people, and are
instituted 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
constitutions 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 Constitutions.=--The practice of inserting in the
constitution many provisions which are temporary in character, makes
frequent alteration a necessity if the constitution is to meet the
rapidly changing needs and conditions of the state. Some of the early
constitutions contained no express provision for their own amendment,
but as time passed 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 constitution a legal and orderly way of amendment came to be
generally appreciated, and at the present time all of the constitutions
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 constitution 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 petition 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 constitutions 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. xxxiv-xxxv. DEALEY, Our State Constitutions, 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 Constitutional System, chs. ii-x.
=Documentary and Illustrative Material.=--1. THORPE's Constitutions
and Organic Laws, or POORE's Charters and Constitutions, both
published by the Government Printing Office. 2. Pamphlet copies of
state constitutions 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 constitutional 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 constitution 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 passed by Congress will override a
conflicting law passed by a state, even though the law passed 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?
7. Which of the following matters fall within the jurisdiction of the
United States and which within the jurisdiction of the states? (1) the
levying of tariff duties, (2) the transfer of land, (3) the building of
lighthouses, (4) the protection of religious worship, (5) the granting
of passports, (6) punishment of crime, (7) the granting of pensions,
(8) the regulation of labor in mines and factories, (9) the protection
of the public health, (10) the support of schools, (11) the regulation
of navigation, (12) the erection of fortifications.
8. Name some powers that may be exercised by both Congress and the
states; some that may be exercised by neither; some that may be
exercised by the states only with the consent of Congress.
9. May the United States government coerce a state? Suppose a state
should refuse or neglect to perform its constitutional duties as a
member of the union, could it be punished or compelled to fulfill its
obligations?
10. May a state be sued by a citizen of the state? by a citizen of
another state? by another state itself?
11. Suppose a state should refuse to pay a debt which it has incurred,
has the person to whom the debt is due any remedy?
12. Will a divorce granted in Nevada to a citizen of Massachusetts be
recognized as valid in Massachusetts?
13. Suppose a man, standing on the New Jersey side of the Delaware
River, should fire a shot across the river and kill a man in
Pennsylvania, would the governor of New Jersey be bound to surrender the
criminal upon demand of the governor of Pennsylvania, in order that he
might be tried in Pennsylvania?
14. What is the difference between a constitution, a statute, and a
charter? Between a written and an unwritten constitution?
15. When was the present constitution of your state adopted? Was it
submitted to the voters before being put into effect? How many
constitutions has your state had since its admission to the union? Were
they all adopted by popular ratification? Who was the delegate from your
county to the last constitutional convention?
16. How may the constitution of your state be amended? Is a majority of
those voting at the election necessary to ratify, or only a majority of
those voting on the proposed amendment? How many times has the present
constitution of your state been amended? Do you think the method of
amendment is too rigid?
17. What is the purpose of a preamble to a constitution? Does the
preamble of your constitution contain a recognition of God?
18. What are the provisions in the bill of rights to your constitution
in regard to the rights of an accused person? in regard to freedom of
the press? freedom of assembly? freedom of worship? right of the people
to change their government?