Page images
PDF
EPUB

permanent, and yet adapted to the progressive development of the future, should be comprehensive, not minute; contain principles, not measures; establish fundamental rights, not petty restrictions; give large powers to its departments, and leave specific legislation, which may be the transient product of spasmodic excitement, not thc people's will, but their whim, within their power freely to control.

An examination of our numerous state constitutions will show that in recent years there has been a marked tendency in the oppositc direction. I have not time nor you paticnce to consider the facts in detail. A few references will be perhaps. sufficicnt.

Down to about 1850, all of the state constitutions, following, substantially, the models of Massachusetts, Virginia and the United States, contained only a bill of rights and a frame of government, the latter established under comprehensive provisions, upon a broad basis and with large powers. Thereafter, and in a constantly increasing degree, these constitutions grow longer, more elaborate and detailed, especially in their restrictions upon legislation and in the exercise thcrein of legislative powers. This tendency seems to have becn niost marked about 1850, from 1870 to 1875, and in the now constitutions of the last few years; and, whilc widely prevalent, to have found suller expression in the West and South. Let me give a few typical illustrations of each period. The constitution of Illinois of 1848, increasing in length in the ratio of eight to eighteen, finds room for minute provisions as. to tax sales, and, in six sections, for regulation of corporations. The constitution of Ohio of 1851, nearly twice as long as its predecessor, restricts the power of the Legislature over corporations, and itself defines their duties and liabilities. The Indiana constitution of the same date bids the Legislature to pass local laws in seventeen specified cases, and in fourteen sections legislates in reference to corporations. Coming to a later period, we find the Illinois constitution of 1870 making elaborate limitation on the power of the Legislature, and very detailed legislation for the regulation of warehouses, railroads. and corporations generally.

The Pennsylvania constitution of 1873 devotes thirteen sections to the regulation of private corporations, and twelve more to railroads and canals, and gives more than one-seventh of its entire length to detailed limitations on the power of the Legislature. The Missouri constitution of 1875, having grown since 1820, in the ratio of 11 to 31, legislates at great length upon these subjects, and minutely provides for the municipal government of St. Louis. The California constitution of 1879, among many details of legislation, prescribes the hours of labor on public works, defines mechanics' licns, and forbids any corporation, directly or indirectly, to employ any Chinese or Mongolian in any capacity. Coming to the latest period, we find the Mississippi constitution of 1891 almost a code of laws. It contains 285 sections, covering forty-seven octavo pages. With much detail it both forbids the Legislature to pass laws upon certain subjects and requires it to legislate upon others, as e. 8., the provisions (sec. 83) that “the Legislature shall enact laws to secure the safety of persons from fires in hotels, theatres and other public places of resort," and (sect. 186)

pass laws to prevent abuses, unjust discriminations and extortion in all charges of express, telephone, sleeping car, telegraph. and railroad companies," ctc., and (sec. 198) " laws to prevent all trusts, combinations, contracts and agreements inimical to. the public welfare." It also incorporates the whole of an employers' liabiiity act, requires any railroad thereafter constructed within three miles of any county seat to pass through the same, and establish a depot therein, regulates the expenses of criminal prosecutions, provides that the state printing and stationery shall be furnished under contract, that the state librarian may be a woman, and for numerous other details of government usually covered by statute law.

Instructive of the tendency of this period are the very voluminous and detailed constitutions adopted in 1889 by the: new states of Montana, Washington, North and South Dakota.. They seemed to be based on the belief that the political panacea for all the evils which have beset legislation in the older states is to put it into constitutional law largely beyond reach of the people. A friendly critic, reviewing them, says:

[ocr errors][ocr errors][ocr errors]

“They approach a code of laws, rather than a resume of governmental principles. They will prove unwieldy in practical administration, because they attempt to prepare the state for a great number of detailed labors. The framers seem to have thought that the governments would, at best, be intrusted to untrustworthy officials, and that it was wise, if not necessary, to set forth the details of state government, even to the definition of such terms as monopolics and railroads." He wisely adds: “A constitution aims to be a chart, based upon a large amount of experience in the conduct of government. But a constitution is not intended to teach a system of legislation, or to discuss passing problems in transportation." As onc reads in these constitutions the many restrictions upon the legislative power, he is almost inclined to believe that this department was established for the purpose of declaring what it could not do, and is reminded of Dickens' Circumlocution office, whose only power was “how not to do it."

In North Dakota, nincty prohibitions are placed upon the Legislature in the single matter of special legislation ; forty-five in South Dakota, and about as many more in the other two statcs. The courts arc cstablished and their jurisdiction defined with the detail and precision of a statute, the Washington constitution even fixing the time within which a judge must render his decision, and the North Dakota constitution rcquiring the Supreme Court to prepare a syllabus of the points adjudicated in cach casc. Apparently the legal members of the convention, whose influence, it is said, inserted this last provision, rely niore on head notes than opinions, and were determined that these at least should be clear of obiter dicta cven if necessary to invoke the power of the organic law of the state. The provisions in reference to corporations are most elaborate and detailed, and are substantially " a compendium of present corporation law, written by popular sentimcnt." By the creation of important administrative boards, and by the many restrictions on the legislative, executive and judicial departments, the tendency of these constitutions is to establish a sort of automatic permanent administration as a substitute for our usual form of government. This fact is

conceded by the thoughtful critic I have quoted, and is called by him a recognition in constitutional law of a “fourth department of government"—the department of administration. All but one of these constitutions provide for amendment or the calling of a constitutional convention by a majority vote of both branches of a single Legislature, ratified by a majority of the electors. Both Dakotas established constitutional prohibition after a popular vote-in North Dakota by a majority of 1159 in a total vote of nearly 36.000, thus making a permanent restriction on the people against the will of nearly onc-half, and beyond their power to change, even when a majority, except by constitutional amendment.

I have referred to these constitutions somewhat at length because of the ncarly 140 cor:stitutions which have been framed in this country, they mark the widest departure from the fundamental principles of constitutional law hitherto generally accepted and adopted. I do not question thc wisdom of enacting into law many of the provisions they contain, and certainly not the public spirit and high purpose of the men who framed them. But on grounds both oi principle and expediency I seriously doubt the wisdom or propriety of this . wide extension of the scope and office of constitutional law. These constitutions, in their numerous restrictions, in their avowed mistrust of representative government, in their excessive legislation placed beyond the convenient control of the people, in their violation of the principle of self-government, secm to have overlooked the fundamental idea upon which rests our constitutional law, and again to have set up the principle of government by control rather than government by compact. True, the control may be of a majority, not a king; but the vital question is not its source, but its extent. If it prevents the pcople from asserting thcir will, if it continues the reign of a departed majority, it is not in accord with the principles and institutions of our liberty-loving, self-governing people.

Certainly these constitutions depart from the wise advice given by our ablest authority on constitutional law. Said Judge Cooley to the North Dakota convention : "In your constitution making remember that times change, that mnen

THE PROPER PROVINCE AND OFFICE

50

by him a ree
ment of gove
but one of t.
calling of a
broth branch
the elcctors.

[ocr errors]

1199 in a to

lent restrict me-half, an majority, exc

I have rch because of framed in thi the fundamet

terally accept el enacting it certainly not the framed expediency I

They approach a code of laws, rather than a resume of governmental principles. They will prove unwieldy in practical administration, because they attempt to prepare the state for a great number of detailed labors. The framers seem to have thought that the governments would, at best, be intrusted to untrustworthy officials, and that it was wise, if not necessary, to set forth the details of state government, even to the dcfinition of such terms as monopolies and railroads." He wisely adds: “A constitution aims to be a chart, based upon a large amount of experience in the conduct of government. But a constitution is not intended to teach a system of legislation, or to discuss passing problems in transportation." As Onc reads in these constitutions the many restrictions upon

the Icgislative power, he is almost inclined to believe that this Jepartment was established for the purpose of declaring what it could not do, and is reminded of Dickens' Circumlocution office, whose only power was “how not to do it."

In North Dakota, nincty prohibitions are placed upon the Legislature in the single matter of special legislation; forty-five in South Dakota, and about as many more in the other two states. The courts arc cstablished and their jurisdiction dcfincd with the detail and precision of a statute, the Washington constitution even fixing the time within which a judge must render his decision, and the North Dakota constitution rcquiring the Supreme Court to preparc a syllabus of the points adjudicated in cach casc. Apparently the legal members of the convention, whose influence, it is said, inserted this last provision, rely more on head notes than opinions, and were determined that these at least should be clear of obiter dicta cven if necessary to invoke the power of the organic law of the state. The provisions in reference to corporations are most elaborate and detailed, and are substantially “a compendium of present corporation law, written by popular sentiment." By the creation of important administrative boards, and by the many restrictions on the legislative, executive and judicial departments, thc tendency of these constitutions is to establish a sort of automatic permanent administration as a substitute for our usual form of government. This fact is

pide extens These const Ered nisu sislation in their viol bare overlo unstitution sernment True, the e

[ocr errors]

vital questio the people

a dearted institutions

Certaint gra by

« PreviousContinue »