The American Commonwealth. Viscount James Bryce
of England. We have therefore in the three charters which I have named, those of 1463, 1599, and 1628, as well as in that of 1691, the essential and capital characteristic of a rigid or supreme constitution—viz., a frame of government established by a superior authority, creating a subordinate lawmaking body, which can do everything except violate the terms and transcend the powers of the instrument to which it owes its own existence. So long as the colony remained under the British Crown, the superior authority, which could amend or remake the frame of government, was the British Crown or Parliament. When the connection with Britain was severed, that authority passed over, not to the state legislature, which remained limited, as it always had been, but to the people of the now independent commonwealth, whose will speaks through what is now the state constitution, just as the will of the Crown or of Parliament had spoken through the charters of 1628 and 1691.
I have taken the case of Massachusetts as the best example of the way in which the trading company grows into a colony, and the colony into a state. But some of the other colonies furnish illustrations scarcely less apposite. The oldest of them all, the acorn whence the oak of English dominion in America has sprung, the colony of Virginia, was, by the second charter, of 1609, established under the title of “The Treasurer and Company of Adventurers and Planters of the City of London for the first colony in Virginia.” 2
Within the period of ten years, under the last of the Tudors and the first of the Stuarts, two trading charters were issued to two companies of English adventurers. One of these charters is the root of English title to the East and the other to the West. One of these companies has grown into the Empire of India; the other into the United States of North America. If England had done nothing else in history, she might trust for her fame to the work which these charters began. And the foundations of both dominions were laid in the age which was adorned by the greatest of all her creative minds, and gave birth to the men who set on a solid basis a frame of representative government which all the free nations of the modern world have copied.
When, in 1776, the thirteen colonies threw off their allegiance to King George III, and declared themselves independent states, the colonial charter naturally became the state constitution.3 In most cases it was remodelled, with large alterations, by the revolting colony. But in three states it was maintained unchanged (except, of course, so far as Crown authority was concerned), viz., in Massachusetts till 1780, in Connecticut till 1818, and in Rhode Island till 1842.4 The other thirty-five states admitted to the Union in addition to the original thirteen, have all entered it as organized self-governing communities, with their constitutions already made by their respective peoples. Each act of Congress which admits a new state admits it as a subsisting commonwealth, sometimes empowering its people to meet and enact a constitution for themselves (subject to conditions mentioned in the act), sometimes accepting and confirming a constitution already made by the people.5 Congress may impose conditions which the state constitution must fulfil; and in admitting the eight newest states has affected to retain the power of maintaining these conditions in force. But the authority of the state constitutions does not flow from Congress, but from acceptance by the citizens of the states for which they are made. Of these instruments, therefore, no less than of the constitutions of the thirteen original states, we may say that although subsequent in date to the federal Constitution, they are, so far as each state is concerned, de jure prior to it. Their authority over their own citizens is nowise derived from it.6 Nor is this a mere piece of technical law. The antiquity of the older states as separate commonwealths, running back into the heroic ages of the first colonization of America and the days of the Revolutionary War, is a potent source of the local patriotism of their inhabitants, and gives these states a sense of historic growth and indwelling corporate life which they could not have possessed had they been the mere creatures of the federal government.
The state constitutions of America well deserve to be compared with those of the self-governing British colonies. But one remarkable difference must be noted here. The constitutions of British colonies have all proceeded from the Imperial Parliament of the United Kingdom,7 which retains its full legal power of legislating for every part of the British dominions. In many cases a colonial constitution provides that it may be itself altered by the colonial legislature, of course with the assent of the Crown; but inasmuch as in its origin it is a statutory constitution, not self-grown, but planted as a shoot by the Imperial Parliament at home, Parliament may always alter or abolish it. Congress, on the other hand, has no power to alter a state constitution. And whatever power of alteration has been granted to a British colony is exercisable by the legislature of the colony, not, as in America, by the citizens at large.
The original constitutions of the states, whether of the old thirteen or of those subsequently admitted, have been in nearly every case (except those of the twelve newest states) subsequently recast, in some instances, five, six, or even seven times, as well as amended in particular points. Thus constitutions of all dates are now in force in different states, from that of Massachusetts, enacted in 1780, but largely amended since, to that of Arizona enacted in 1912.
The constitutions of the revolutionary period were in a few instances enacted by the state legislature, acting as a body with plenary powers, but more usually by the people acting through a convention, i.e., a body specially chosen by the voters at large for the purpose, and invested with full powers, not only of drafting, but of adopting the instrument of government.8 Since 1835, when Michigan framed her constitution, the invariable practice in the Northern states has been for the convention, elected by the voters, to submit in accordance with the precedents set by Massachusetts in 1780, and by Maine in 1820, the draft constitution framed by it to the citizens of the state at large, who vote upon it yes or no. They usually vote on it as a whole, and adopt or reject it en bloc, but sometimes provision is made for voting separately on some particular point or points. In the Southern states the practice has varied. In 1890, Mississippi enacted a new constitution by a convention alone; and in Kentucky (in 1891), after the draft constitution which the convention had prepared had been submitted to and accepted by a popular vote (as provided by the statute which summoned the convention), the convention met again and made some alterations on which, strange to say, the people have not been since consulted.9 Alabama in 1901 submitted her new constitution to the people. But South Carolina in 1895 and Louisiana in 1898 allowed conventions to adopt constitutions, and Virginia in 1902 followed their example, although the statute under which the constitutional convention was acting had directed that the revised constitution should be “submitted to the qualified voters.”
The people of a state retain forever in their hands, altogether independent of the national government, the power of altering their constitution. When a new constitution is to be prepared, or the existing one amended, the initiative usually comes from the legislature, which (either by a simple majority, or by a two-thirds majority, or by a majority in two successive legislatures, as the constitution may in each instance provide) submits the matter to the voters in one of two ways. It may either propose to the people certain specific amendments,10 or it may ask the people to decide by a direct popular vote on the propriety of calling a constitutional convention to revise the whole existing constitution. In the former case the amendments suggested by the legislature are directly voted on by the citizens; in the latter the legislature, so soon as the citizens have voted for the holding of a convention, provides for the election by the people of this convention. When elected, the convention meets, sets to work, goes through the old constitution, and prepares a new one, which is then presented to the people for ratification or rejection at the polls. Only in the little state of Delaware is the function of amending the constitution still left to the legislature without the subsequent ratification of a popular vote, subject, however, to the provision that changes must be passed by two successive legislatures, by a two-thirds majority of the members elected to each house, and must have been put before the people at the election of members for the second.11 Some states provide for the submission to the people at fixed intervals, of seven, ten, sixteen, or twenty years, of the propriety of calling a convention to revise the constitution, and a few allow a prescribed percentage of the voters to propose amendments by their own initiative. Be it observed, however, that whereas the federal Constitution can be amended only by a vote of three-fourths of the states, a constitution can in nearly every state be changed by a bare majority of the citizens voting at the polls.12 Hence we