CHANGES IN THE STATE CONSTITUTIONS AFTER 1787
The effects of the conservative reaction were not confined to the
general government. The movement to limit the power of the popular
majority was felt in the domain of state as well as national politics.
Even before the Constitutional Convention assembled the political
reaction was modifying some of the state constitutions. This is seen
especially in the tendency to enlarge the powers of the judiciary which
was the only branch of the state government in which life tenure
survived. This tendency received powerful encouragement and support in
the adoption of the Federal Constitution which secured to the judiciary
of the general government an absolute veto on both federal and state
legislation. For as the state courts were not slow in following the
precedent set by the Federal courts, what had been before the adoption
of the Constitution a mere tendency soon became the practice in all the
states. This in reality accomplished a revolution in the actual working
of the state governments without any corresponding change in their
outward form. It effected a redistribution of political powers which
greatly diminished the influence of the popularly elected and more
responsible branches of the state government and gave a controlling
influence to that branch over which the people had least control.
Not only was the state judiciary allowed to assume the veto power, but
their independence of public opinion was more effectually safeguarded by
depriving a mere majority of the legislature of the power to remove
them. The provision of the Federal Constitution requiring a two-thirds
majority in the legislative body for removal by impeachment or otherwise
was quite generally copied. Without some such safeguard the party in
control of the legislature could prevent the exercise of the judicial
veto by removing from office any judges who dared to oppose its policy.
New York and South Carolina were the only states adopting constitutions
during the Revolutionary period, which included provisions limiting the
power of the majority to impeach public officials. The New York
constitution of 1777 required a two-thirds majority in the lower house,
and the South Carolina constitution of 1778 a two-thirds majority in
both houses. Pennsylvania copied the impeachment provisions of the
Federal Constitution in her constitution of 1790; Delaware went even
farther, and in her constitution of 1792, required a two-thirds majority
in both houses; Georgia followed the example of the Federal
Constitution in 1798; Virginia, in 1830; North Carolina, in 1835;
Vermont, in 1836; New Jersey, in 1844; and Maryland, in 1851.
With the progress of this movement to restore the system of checks in
the state constitutions the governor regained his independence of the
legislature and also many of the rights and prerogatives of which the
Revolution had deprived him. He was made coordinate with the
legislature, set over against it and generally clothed with the
qualified veto power, which made him for all practical purposes the
third house of that body. Georgia increased the governor's term of
office to two years and gave him the qualified veto power in 1798.
Pennsylvania made his term of office three years and gave him the veto
power in 1790. New Hampshire conferred the veto power on him in 1792 and
New York in 1821.
This tendency to make the public official less directly dependent upon
the people or their immediate representatives is clearly seen in other
important changes made in the state constitutions during this period.
Popular control over the legislature was diminished by lengthening the
terms of the members of both houses and by providing that the upper
house should be elected for a longer term than the lower. Georgia
established an upper house in 1789 and made the term of office of its
members three years. In 1790 Pennsylvania also added a senate whose
members were to be elected for four years, and South Carolina increased
the term of its senators from one to four years. Delaware extended the
term from one to two years for members of the lower house and from three
to four years for members of the upper house and made the legislative
sessions biennial instead of annual in 1831. North Carolina increased
the term of members of both houses from one to two years and adopted
biennial sessions in 1835. Maryland in 1837 extended the term of
senators from five to six years, and in 1846 established biennial
sessions of the legislature. The responsibility of the legislature was
still further diminished by the gradual adoption of the plan of partial
renewal of the senate, which was incorporated in the Revolutionary
constitutions of Delaware, New York and Virginia and later copied in the
Federal Constitution. This ensured the conservative and steadying
influence exerted by a body of hold-over members in the upper house.
With the exception of five states in which the members of one branch of
the legislature were elected for terms varying from two to five years,
the Revolutionary state constitutions provided for the annual election
of the entire legislature. This plan made both houses conform to the
latest expression of public opinion by the majority of the qualified
voters at the polls. And since neither the executive nor the courts
possessed the veto power, the system ensured prompt compliance on the
part of the law-making body with the demands of the people as expressed
in the results of the legislative election.
The influence of public opinion on the state governments was greatly
weakened by the constitutional changes above mentioned. The lower branch
of the legislature, inasmuch as all its members were simultaneously
elected, might be regarded as representative of recent, if not present,
public opinion, though effective popular control of that body was made
more difficult by lengthening the term of office, since this diminished
the frequency with which the voters could express in an authoritative
manner their disapproval of the official record of its members. Under
the plan adopted present public opinion as formulated in the results of
the last election was not recognized as entitled to control the state
senate.
These changes in the state constitutions by which the executive and
judicial branches of the government acquired the veto power amounted in
practice to the creation of a four-chambered legislature. By thus
increasing the number of bodies which it was necessary for the people to
control in order to secure the legislation which they desired, their
power to influence the policy of the state government was thereby
diminished. And when we reflect that not only was legislative authority
more widely distributed, but each branch of the state government
exercising it was also made less directly dependent on the qualified
voters, we can see that these constitutional provisions were in the
nature of checks on the numerical majority.
A consideration of the changes made in the method of amending the state
constitutions leads to the same conclusion. During the Revolutionary
period, as we have seen, the tendency was strongly toward making the
fundamental law the expression of the will of the numerical majority.
Difficulties in the way of change were reduced to a minimum. But under
the influence of the political reaction which followed, and which
produced the Constitution of the United States, the state governments
were so organized as to make it more difficult for the majority to
exercise the amending power. Georgia in 1789 changed the method of
amending the state constitution by requiring a two-thirds majority in a
constitutional convention, and made another change in 1798 by which a
two-thirds majority in each house of the legislature and a three-fourths
majority in each house of the succeeding legislature was required for
the adoption of an amendment to the constitution. South Carolina in 1790
adopted a provision guarding against mere majority amendment by making
the approval of a two-thirds majority in both branches of two
successive legislatures necessary for any changes in the constitution.
Connecticut in 1818 restricted the power of amending by requiring a
majority in the house of representatives, a two-thirds majority in both
houses of the next legislature, and final approval by a majority of the
electors. New York in 1821 adopted a plan which required that an
amendment should receive a majority in each branch of the legislature, a
two-thirds majority in each branch of the succeeding legislature, and be
approved by a majority of the voters. North Carolina in 1835 made a
three-fifths majority in each house of the legislature and a two-thirds
majority of each house of the following legislature necessary for
changes in the constitution.
The judicial veto served the purpose of preventing majority amendment
under the guise of ordinary legislation, while a safeguard against
constitutional changes favored by a mere majority was thus provided in
the extraordinary majority required in both houses of the legislature to
propose or adopt amendments. This, as has been shown in the case of the
Federal Constitution, is a formidable check on the majority. In view of
this restriction upon the proposing of amendments the provision for
ratification by a popular majority, which owing to the progress of the
later democratic movement has now been generally adopted, is no real
concession to the principle of majority rule.
Assuming that a two-thirds majority in the legislature is required to
propose an amendment, and that the principle of representation is so
applied that each party is represented in the legislature in proportion
to its popular vote, it would scarcely ever be possible for any party to
propose an amendment to the state constitution, since it can not be
expected under any ordinary conditions to control two-thirds of the
popular vote. But inasmuch as the successful party often secures under
our system much more than its proportional share of representation in
the legislature, it is by no means unusual for a party to have a
two-thirds majority in both houses of a state legislature. This would
appear to give the numerical majority under such conditions the power to
propose and adopt amendments. Such would be the case if the party were
really responsible to those who supported it at the polls. But this
would assume the existence of a purely state party, organized with
reference to state issues only, and carrying the election as the
advocate of a definite state policy. Moreover, it would presuppose all
those means, political and constitutional, by which the majority in the
legislature would be accountable to the popular majority in the state.
This is rendered impossible, however, as has been shown, by our system
of government.
The above-mentioned changes in the constitutions of the older states may
be attributed in large measure to the reaction against democracy which
brought about the adoption of the Federal Constitution. They may be
regarded as an expression of that distrust and fear of democracy which
filled the minds of those who framed and set up our Federal government.
It is not contended, however, that they are now so regarded by the
masses of the people. The work of deifying the Federal Constitution was
soon accomplished. And when the people had come to venerate it as the
most perfect embodiment of the doctrine of popular sovereignty that the
intelligence of man could devise, it was but natural that they should
acquiesce in the proposal to make the state governments conform more
closely to the general plan of that instrument. In view of the
widespread sentiment which amounted to a blind and unthinking worship of
the Constitution, it is not surprising that the political institutions
of the general government should have been largely copied by the states.
The only surprising thing in this connection is the fact that they did
not follow the Federal model more closely, since every feature of it was
the object of the most extravagant eulogy. Here we see, however, an
inconsistency between profession and practice. The people who tolerated
no criticism of the Federal Constitution showed nevertheless a distrust
of some of its more conservative features. Much as the indirect election
of President and United States senators was favored by the framers of
our Federal Constitution, there has been no tendency to apply that
principle in the selection of the corresponding state officials.
In all the states framing new constitutions during the Revolutionary
period, except Massachusetts, New Hampshire, and New York, the governor
was elected by the legislature. Pennsylvania abandoned indirect election
and adopted election by the qualified voters in 1790; Delaware, in 1792;
Georgia, in 1824; North Carolina, in 1835; Maryland, in 1837; New
Jersey, in 1844; Virginia, in 1850; and South Carolina, in 1865. South
Carolina and Maryland are the only states which have ever had indirect
election of the upper house. Both adopted it in 1776, the constitution
of South Carolina providing that the members of the lower house should
elect the members of the upper house, and the constitution of Maryland
requiring that members of the upper house should be chosen by an
electoral college. This was abandoned for direct election in South
Carolina in 1778 and in Maryland in 1837.
The conservative reaction was soon followed by a new movement toward
democracy. This no doubt largely explains the failure of the people to
reproduce in their state constitutions all those features which they
professed to admire in the Federal Constitution. Not only did they not
copy all the new features of that document, but they even discarded some
of the then existing provisions of the state constitutions which had
been copied in the Federal Constitution. The principle of indirect
election which was everywhere recognized in the choice of the state
judiciary during the Revolutionary period was gradually abandoned for
the more democratic method of direct popular choice which has now become
the rule. The life tenure of judges which formerly existed in most of
the states has almost entirely disappeared. In all but four states the
judges are now chosen for terms varying from two to twenty-one
years--the average length of the term being eight or ten years. The
combination of direct popular choice with a fixed term of office has had
the effect of making the state judiciary much more amenable to public
opinion than the corresponding branch of the Federal government. By
reason of the relatively long term for which the judges of the state
supreme court are elected, however, and the plan of gradual renewal
which prevents present public opinion from ever gaining the ascendency
in that body, it is still the least responsible and most conservative
branch of the state government.
We see, then, two motives exerting an influence in the remolding of the
state constitutions, one being the desire to copy the Federal
Constitution and the other the belief that the state government should
reflect the will of the people. That the attainment of one of these ends
would inevitably defeat the other was not generally recognized. The
conviction which had become thoroughly rooted in the popular mind that
the system of checks and balances was the highest expression of
democratic organization ensured the embodiment of the general features
of that system in the constitutions of the various states. The
constitutional changes having this end in view largely destroyed the
responsibility of the state governments to the people and thus prevented
the very thing they were designed to accomplish. But however much this
system was in reality opposed to the principle of direct popular
control, it was adopted by the people with the idea of making the
government more readily reflect their will. They were not conscious of
any inconsistency in holding tenaciously to the doctrine of checks and
balances and at the same time seeking to give the people more control
over the state governments. The latter purpose is clearly seen in the
constitutional changes relating to the tenure and manner of election of
the judiciary and in the adoption of universal suffrage. Summing up the
effects of these changes in the state constitutions, we may say that the
suffrage was placed upon a democratic basis, the state judiciary was
organized on a less irresponsible plan and the appearance of political
responsibility secured by applying the principle of direct election to
every branch of the state government. The longer term of office
established for the legislative and executive branches of the state
government, however, together with the increase in the authority of the
judiciary and the adoption of the system of checks and balances has upon
the whole had the effect of making the state government less responsive
to the electorate.
As seen in preceding chapters, the framers of the Federal Constitution
made use of the scheme of checks and balances for the purpose of
limiting the power of the people. There is little evidence that they
favored diffusion of authority except in so far as that authority rested
upon a popular basis. Hence they carried the plan much farther in
curtailing the power of the House of Representatives than a logical
application of the doctrine would have justified, while at the same time
giving more authority and power of independent action to the other
branches of the general government than was consistent with their
avowed, if not real, purpose.
They gave to the executive and judicial branches of the general
government power to control the administration of Federal laws. The
enforcement of all laws and regulations of the general government, in
so far as the President and Senate might desire to enforce them, was
guaranteed through the power to appoint and remove those who were
entrusted with their execution, while the right of appeal from a state
to the Federal courts precluded the possibility of enforcing a state law
deemed to exceed the proper limits of state authority.
In the state governments on the other hand we find a high degree of
administrative decentralization. The governor, unlike the President, was
not given any adequate power to control those entrusted with the
execution of state laws. A multitude of directly elected local officials
are the agents of the state for this purpose. And since they reflect the
sentiment of the various local interests to which they owe their
election, it may and often does happen that a law to which those
interests are opposed is rendered practically inoperative through the
efforts of those local officials who are sworn to enforce it. The
practical working of this system often gives to a local community an
administrative veto on such general laws of the state as may be opposed
to local sentiment. By this means the general executive authority of the
state is weakened and its responsibility correspondingly diminished.
In still another respect the policy of dividing authority and parcelling
it out between separate and distinct organs of government has been
carried much farther in the state than in the Federal Constitution.
Unlike the Federal government in which executive power is centralized in
the President, the state constitutions have created a number of separate
officials, boards and commissions, some directly elected and some
appointed, independent of each other and irresponsible except in so far
as a fixed term of office implies responsibility. This means that
instead of one executive the state has many. Only one of them--the
governor--has, it is true, a veto on the enactment of laws; but this, as
we have seen, is really a legislative and not an executive power. Each
of these has what may be termed an administrative veto; that is, the
power to negative the laws which they are expected to administer by
simply not enforcing them. The impossibility of securing an honest and
faithful administration of the laws where the responsibility for their
enforcement is divided between a number of separate and practically
independent officials, is clearly shown in the experience of the various
states. The evils of this system are illustrated in the state laws
enacted for the purpose of controlling the railway business. Provision
is usually made for their enforcement through a railway commission
either directly elected or appointed by the governor. That direct
election by the people for a fixed term, thereby securing independence
during that term, fails to guarantee the enforcement of such laws is
strikingly shown in the experience of California, where this body has
been continually under the domination of the railway interests.[159]
Under a system which thus minutely subdivides and distributes the
administrative function, any effective control over the execution of
state laws is made impossible. The governor, who is nominally the head
of the executive agencies of the state, is not in reality responsible,
since he has no adequate power to compel the enforcement of laws
directly entrusted to other independent state officials. Any interest or
combination of interests that may wish to prevent the enforcement of
certain laws may be able to accomplish their end by merely controlling
the one official or board whose duty it is to enforce the law in
question. Their task would be a much more difficult one, if it were
necessary to control for that purpose the entire executive arm of the
state. The opportunity for the corrupt use of money and influence is
thus vastly increased, since the people, though they might watch and
judge fairly well the conduct of one state executive, can not exercise
any effective censorship over a large number of such officials.
This irresponsibility which arises out of a wide diffusion of power is
not confined to the executive branch of the state government. The
legislature in the course of our political development has taken on the
same elaborate committee organization which characterizes, as we have
seen, our Federal Congress. The same sinister influences working through
similar agencies oppose needed legislation. But although the good bills
are frequently killed or mutilated in the secrecy of the committee room,
the skilful use of money or other corrupt influence often secures the
enactment of laws opposed to the interests of the people. Moreover, the
practice known as log-rolling by which the representatives of various
local interests combine and force through measures which secure to each
of certain localities some advantage at the expense of the state at
large are so common as to excite no surprise.
The relation existing between the executive and legislative branches
under our system is another source of irresponsibility, since it does
not follow simply because a law has been placed upon the statute books
of a state that it can be enforced. An act may be passed in response to
a strong public sentiment, it may be constitutional and the executive
may be willing and may even desire to enforce it, and yet be unable to
do so. The legislature may, and frequently does, enact laws under the
pressure of public opinion while at the same time quietly exercising
what is, in effect, a veto on their execution. In the case of much
important legislation it can accomplish this by merely not
appropriating the funds which are required for their enforcement. The
laws against adulteration are a good illustration. An official known
perhaps as a dairy and food commissioner may be provided for, whose duty
it is to enforce these laws. The nature of the work entrusted to him
requires that he should have a corps of assistants, inspectors who are
to keep a watchful eye on the goods likely to be adulterated and collect
samples of such goods from the various places in the state where they
are exposed for sale, and chemists who are to analyze the samples thus
procured and determine whether manufacturers and dealers are complying
with the law. Unless an adequate sum is appropriated for this purpose,
and for prosecuting those who are violating the law, such laws can not
be enforced.
In our state governments the subdivision of authority has been carried
so far that no effective control over the enactment or enforcement of
state laws is possible. Under the influence of the doctrine of checks
and balances the policy of widely distributing political authority has
inured to the benefit of those private interests which are ever seeking
to control the government for their own ends, since it has supplied the
conditions under which the people find it difficult to fix the blame for
official misconduct. Indeed it may be said that wherever power should be
concentrated to ensure responsibility, it has been almost invariably
distributed.