The American Commonwealth. Viscount James Bryce

and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guaranteed or protected, by the Constitution.²⁸. . . But when a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it; and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto, is true also as to any part of an Act which is found to be unconstitutional, and which consequently is to be regarded as having never at any time been possessed of legal force.” ²⁹

      It may be thought, and the impression will be confirmed when we consider as well the minuteness of the state constitutions as the profusion of state legislation and the inconsiderate haste with which it is passed, that as the risk of a conflict between the constitution and statutes is great, so the inconveniences of a system under which the citizens cannot tell whether their obedience is or is not due to a statute must be serious. How is a man to know whether he has really acquired a right under a statute? How is he to learn whether to conform his conduct to it or not? How is an investor to judge if he may safely lend money which a statute has empowered a community to borrow, when the statute may be itself subsequently overthrown?

      To meet these difficulties some state constitutions³⁰ provide that the judges of the supreme court of the state may be called upon by the governor or either house of the legislature to deliver their opinions upon questions of law, without waiting for these questions to arise and be determined in an ordinary lawsuit.³¹ This expedient seems a good one, for it procures a judicial and nonpartisan interpretation, and procures it at once before rights or interests have been created. But it is open to the objection that the opinions so pronounced by judges are given before cases have arisen which show how in fact a statute is working, and what points it may raise; and that in giving them the judges have not, as in contested lawsuits, the assistance of counsel arguing for their respective clients. And this is perhaps the reason why in most of the states where the provision exists, the judges have declared that they act under it in a purely advisory capacity, and that their deliverances are to be deemed merely expressions of opinion, not binding upon them should the point afterwards arise in a lawsuit involving the rights of parties.³²

      The highest court of a state may depart from a view it has previously laid down, even in a legal proceeding, regarding the construction of the constitution, that is to say, it has a legal right to do so if convinced that the former view was wrong. But it is reluctant to do so, because such a course unsettles the law and impairs the respect felt for the bench. And there is less occasion for it to do so than in the parallel case of the supreme federal court, because as the process of amending a state constitution is simpler and speedier than that of altering the federal Constitution, a remedy can be more easily applied to any mistake which the state judiciary has committed. This unwillingness to unsettle the law goes so far that state courts have sometimes refused to disturb a practice long acquiesced in by the legislature, which they have nevertheless declared they would have pronounced unconstitutional had it come before them while still new.

CHAPTER 38

       The Development of State Constitutions

      It was observed in the last chapter that the state constitutions furnish invaluable materials for history. Their interest is all the greater, because the succession of constitutions and amendments to constitutions from 1776 till today enables the annals of legislation and political sentiment to be read in these documents more easily and succinctly than in any similar series of laws in any other country. They are a mine of instruction for the natural history of democratic communities. Their fulness and minuteness make them, so to speak, more pictorial than the federal Constitution. They tell us more about the actual methods and conduct of the government than it does. If we had similar materials concerning the history of as many Greek republics during the ages of Themistocles and Pericles, we could rewrite the history of Greece. Some things, however, even these elaborately minute documents do not tell us. No one could gather from then what were the modes of doing business in the state legislatures, and how great a part the system of committees plays there. No one could learn what manner of men constitute those bodies and determine their character. No one would know that the whole machinery is worked by a restlessly active party organization. Nevertheless they are so instructive as records of past movements, and as an index to the present tendencies of American democracy, that I heartily regret that the space at my disposal permits me to make only a sparing use of the materials which I gathered during many months spent in studying the one hundred and thirteen constitutions enacted between 1776 and 1887, to which many more have since been added.¹

      

      Three periods may be distinguished in the development of state governments as set forth in the constitutions, each period marked by an increase in the length and minuteness of those instruments.

      The first period covers about thirty years from 1776 downwards, and includes the earlier constitutions of the original thirteen states, as well as of Kentucky, Vermont, Tennessee, and Ohio.

      Most of these constitutions were framed under the impressions of the Revolutionary War. They manifest a dread of executive power and of military power, together with a disposition to leave everything to the legislature, as being the authority directly springing from the people. The election of a state governor is in most states vested in the legislature. He is nominally assisted, but in reality checked, by a council not of his own choosing. He has not (except in Massachusetts) a veto on the acts of the legislature.² He has not, like the royal governors of colonial days, the right of adjourning or dissolving it. The idea of giving power to the people directly has scarcely appeared, because the legislature is conceived as the natural and necessary organ of popular government, much as the House of Commons is in England. And hence many of these early constitutions consist of little beyond an elaborate bill of rights and a comparatively simple outline of a frame of government, establishing a representative legislature,³ with a few executive officers and courts of justice carefully separated therefrom.

      The second period covers the first half of the present century down to the time when the intensity of the party struggles over slavery (1850–60) interrupted to some extent the natural processes of state development. It is a period of the democratization of all institutions, a democratization due not only to causes native to American soil, such as the rise in the West of new agricultural communities where all the settlers were practically equal, the supremacy in politics of the generation who had, as boys during the Revolutionary War, been permeated by the phrases of 1776, but also to the influence of French republican ideas, an influence which began to decline after 1805 and ended with 1851, since which time French examples and ideas have counted for little or nothing. Such provisions for the maintenance of religious institutions by the state as had continued to exist are now swept away. The principle becomes established (in the North and West) that constitutions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given to the people. Property qualifications are abolished,⁴ and a suffrage practically universal, except that it often excludes free persons of colour, is introduced. Even the judges are not spared. Many constitutions shorten their term of office, and direct them to be chosen by popular vote. The state has emerged from the English conception of a community acting through a ruling legislature, for the legislature begins to be regarded as being only a body of agents exercising delegated and restricted powers, and obliged to recur to the sovereign people (by asking for a constitutional amendment) when it seeks to extend these powers in any particular direction. The increasing length of the constitutions during this half century shows how the range of the popular vote has extended, for these documents now contain a mass of ordinary law on matters which in the early days would have been left to the legislatures.

      In the third period, which begins from about the time of the Civil War, a slight reaction may be discerned, not against popular sovereignty, which is stronger than