State constitutions adopted since the Civil War Methods of enacting and amending constitutions

Thirty-six States were admitted to the Union up to 1865 and twelve States after 1865. The latter are as follows: 1866. Nebraska. Enabling act of Congress 1864; Congressional act for admission and President's proclamation announcing admission, both 1867. Later constitution, 1875.

1876. Colorado. Enabling act of Congress, 1875, and President's proclamation announcing admission, 1876.

1889. Idaho. Enabling act of Congress 1890. 1889. Montana. Enabling act of Congress and President's proclamation announcing admission, both 1889.

1889. North Dakota. Enabling act of Congress and President's proclamation of admission, both 1889.

1889. South Dakota. Same as North Dakota. 1889. Washington. Same as North Dakota. 1889. Wyoming. Congressional act for admission, 1890.

1895. Utah. Enabling act of Congress 1894, and President's proclamation of admission,

The

The constitutions of this period reveal a tendency to strengthen the powers of the executive and the judiciary; the governors and judges serve for a longer term and the governors have the limited veto power in all States save North Carolina. legislatures during this period have important limitations put upon their powers particularly as affecting special legislation, internal improvements, State indebtedness, and the length of the legislative session. During this period, too, the field of administrative activity has been enlarged as required by the modern industrial State. The regulation of corporations, the government of cities, the conditions in factories and the hours of labor, public health, public schools, charitable and reformatory institutions, etc., all are considered in the constitutions of this period.

One of the most noticeable features of the newer constitutions is their great similarity. They have an endless variety of detail, but they agree in essentials. Whatever tendencies have been at work, the influence has been the same throughout the Union.

The constitutions are all longer, the old topics being treated at far greater length than in the first half of the Nineteenth century and the latter part of the Eighteenth century. Education, railroads, private law, State and municipal indebtedness are among the topics which were either untouched or very indifferently mentioned in the early constitutions. The later provisions regarding the judiciary, and particularly those restricting the power of the legislature, have grown far more minute in recent years. This is attributed to the frequent abuses of power and the waning respect for legislative authority. "The time might almost seem to have come," observes Mr. Bryce, "for prescribing that, like Congress, they [the legislatures] should be entitled to legislate on certain enumerated subjects only, and be always required to establish affirmatively their competence to deal with any given topic."

Perhaps the one thing most noticeable in the development of the State constitutions has been the earlier exalting of the powers of the legislature and their subsequent diminution by restrictive clauses inserted in the fundamental law, extending the direct interference of the people through their representatives and changing the constitution itself from a short and simple document to a long and complex one. Just how far this will go in coming years it is impossible to foresee. It is but natural, after all, that the checks and balances of government

should be brought into the fundamental law and there made to represent the guiding principles both of our National life and personal relations, just as the Ten Commandments of old stood by themselves as a fundamental digest or code of laws embracing the many other provisions in the ancient scheme of government; for the State constitution of to-day stands in relation to the statute law as the Ten Commandments stood in relation to the other laws of Moses which follow the Twentieth Chapter of Exodus.

A slight reaction might be noted after the Civil War, up to which time there had been a strong Democratic tendency in all American institutions. The reaction was not against popular sovereignty, which had grown stronger than ever, it was as already stated in favor of strengthening the executive and judicial departments. Undoubtedly the most notable development since 1865 has been the narrowing legislative activity and the checking of its powers by a variety of complicated restrictions. Mr. Bryce, a commentator who is read to-day with as much respect and interest for his clear observation and illuminating suggestion as when he first published The American Commonwealth, has this to say regarding this most notable feature in the development of the State constitutions: "It may seem that to take powers away from the legislature is to give them to the people, and is therefore another step towards pure democracy. But in

America this is not so, because a legislature always yields to any popular clamor, however transient, while direct legislation by the people involves some delay. Such provisions are therefore conservative in their results, and are really checks imposed by the citizens upon themselves."

Since 1789 the States which have been admitted to the Union have previously drawn up their constitutions and submitted them to Congress for approval; or else Congress has passed an act empowering the people of the territory seeking statehood to hold a convention and enact a constitution, and the constitution so enacted has received Congressional endorsement. A state constitution must contain no provisions contrary to the declarations of the Federal Constitution, and none contrary to the decisions of the United States Supreme Court interpreting the Federal Constitution, or opposed to any treaty authorized under the Federal Constitution.

State Constitutions are amended in three different ways in a manner prescribed in the constitutions themselves. Many of them provide for amendment through a constitutional convention to which delegates are nominated and elected. Another method, prescribed in all the States except New Hampshire, is by action of the legislature which is afterward ratified by popular vote. Finally, we now have the method recently adopted in several of the States that of the popular initiative and referendum.

When a new constitution is to take the place of an existing one, the constitutional convention is called for the purpose of drafting and discussing each new provision proposed, and the form of the whole instrument. In several States the existing constitutions provide that such conventions shall be held at regular intervals; and in a number of other States the constitutions require that the people shall vote every seven, ten, sixteen, or twenty years whether a constitutional convention shall be called; and in still other States the legislature is given the power to decide in favor of such convention being called (a two-thirds vote of the members of both houses being generally necessary to pass such a resolution).

The method is to give notice by publication in the newspapers. Then a vote of the people is taken on the question whether a convention shall be called, and the result of this vote determines the action of the legislature, thus: If there is a majority vote in favor of the convention, the time and place of holding it is decided by the legislature, which also arranged for the election of delegates. It is the common practice now to submit the new constitution which the convention has drafted to the vote of the people for their endorsement or rejection. Down to 1887, 157 constitutional conventions had met, 113 of which, following the lead of Massachusetts (1780), submitted their work to the people.

When the entire constitution is not to be revised, special amendments are adopted by the legislature, in many of the States, and submitted to the people for acceptance or rejection. In some of the States only a majority vote is necessary to pass a resolution making a proposal of amendment, but in most States it takes the vote of two-thirds or threefourths of the members of each house. Some States require that the resolutions be proposed by two successive legislatures before they are acted upon. At some regular election the people ratify or reject at the polls the amendment so proposed by the legislature, special majorities of the popular vote being sometimes required.

The third method of amending a constitution that of the initiative and referendum-operates by a certain per cent. of the legal voters (eight per cent. in Oregon, for example) proposing the amendment by petition. The proposal is submitted to popular vote and is made part of the constitution if upheld by a majority of the voters. A notable feature in the later development of the State constitutions is the tendency of the new democratic spirit to refer everything to the direct vote of the people.

Some States have made frequent changes in their constitutions, others but few, there being on the whole a strong conservative tendency. This tendency should be, of course, and

usually is, a feature inherent in the very being of such an instrument. The name "constitution" itself means a body of law by which the government is constituted and given organization and functions. Frequent changes, therefore, as well as the introduction of too great a number of subjects which belong more properly to private law through statutory enactments, regulating the relations of citizens to each other in their private capacities, are not in accord with the nature of the instrument and scarcely fall within its legitimate province. Nevertheless, the constitution makers of to-day, particularly those of the newer States admitted to the Union in the last forty years, have shown a most marked tendency to make numerous changes and to treat a great variety of subjects in this instrument. It is undoubtedly true that respect for the State constitutions would be greater if the changes were fewer and that the changes would be fewer if respect were greater. Mr. Bryce went so far as to say that, although a constitution is the fundamental and supreme law of the State, its provisions are no better observed and enforced than those of an ordinary statute; but this is very much to be doubted at present, whatever the facts were in 1889 when The American Commonwealth first appeared.

So far as concerns unrestricted proposal of amendments by a single legislative action and the adoption of

amendments by the vote of a majority of the persons voting thereon, there is an undoubted tendency toward the easy amending process. The development in quite recent years has been to make amendment still easier by giving to the people the power of initiating amendments. The constitutions which illustrate best the easy amending tendency are those of California (1897), Florida (1885), Georgia (1877), Idaho (1889), Louisiana (1898), Maine (1819), Maryland (1867), Missouri (1875), Michigan (1908), North Carolina (1875), Oregon (1906), South Dakota (1889), Texas (1875), Utah (1895), Washington (1889), and West Virginia West Virginia (1872). To this group might be added Colorado, Kansas and Montana, which restrict the legislative proposal of amendments; also South Carolina, which provides for popular proposal and vote upon amendments. The States whose constitutions are least flexible, requiring a popular vote greater than that of a majority of all persons voting upon the amendment, are: Alabama (1901), Arkansas (1874), Illinois (1870), Indiana (1851), Minnesota (1898), Nebraska

(1875), Ohio (1851), Oklahoma (1907), Rhode Island (1842), Tennessee (1870), and Wyoming (1889). With them should be classed Mississippi (1890) and New Hampshire with its requirement that an amendment receive two-thirds of the vote cast upon the question of its adoption or rejection. Where, in addition to the requirement of a majority of all votes at an election, there are other restrictions upon the amending process, the alteration of a constitution often becomes practically impossible. This is true of Tennessee and to a smaller extent of Illinois and Indiana, owing to their special combinations of limitations.*

* F. N. Thorpe, The Federal and State Constitutions, Colonial Charters and Other Organic Laws (7 vols. compiled and edited under act of Congress, 1906); James Bryce, The American Commonwealth; R. L. Ashley, The American Federal State; Charles Borgeaud, Adoption and Amendment of Constitutions in Europe and America; J. Q. Dealey, Our State Constitutions; H. Hitchcock, American State Constitutions; William B. Guitteau, Government and Politics in the United States; J. A. Jameson, Constitutional Conventions; Judson S. Landon, The Constitutional History and Government of the United States; E. McClain, Constitutional Law in the United States; James Schouler, Constitutional Studies; J. B. Phillips, Recent State ConstitutionMaking.