The American Commonwealth. Viscount James Bryce
Southern as well as the Western states. It is among the latter that changes are frequent. Louisiana, for instance, whose state life began in 1812, has had seven complete new constitutions, without counting the so-called Secession Constitution of 1861. Virginia, Georgia, and South Carolina (original states) have had six each. Kansas, which began in 1855, has had four. Among the Northern states, Pennsylvania (an original state) has had four; Illinois, dating from 1818, three; New York, five; Delaware, four; whereas Connecticut and Rhode Island (both original states), and Maine (dating from 1820), have had only one each, Vermont and New Hampshire, three each. Massachusetts still lives under her Constitution of 1780, which has indeed been amended at various dates, yet not to such an extent as to efface its original features. Of the causes of these differences I will now touch on two only. One is the attachment which in an old and historic, a civilized and well-educated community, binds the people to their accustomed usages and forms of government. It is the newer states, without a past to revere, with a population undisciplined or fluctuating, that are prone to change. In well-settled commonwealths the longer a constiution has stood untouched, the longer it is likely to stand, because the force of habit is on its side, because an intelligent people learns to value the stability of its institutions, and to love that which it is proud of having long ago created.
The other cause is the difference between the swiftness with which economic and social changes move in different parts of the country. They are the most constant sources of political change, and find their natural expression in alterations of the constitution. Such changes have been least swift and least sudden in the New England and Middle states, though in some of the latter the growth of great cities, such as New York and Philadelphia, has induced them, and induced therewith a tendency to amend the constitutions so as to meet new conditions and check new evils. They have been most marked in regions where population and wealth have grown with unexampled speed, and in those where the extinction of slavery has changed the industrial basis of society. Here lies the explanation of the otherwise singular fact that several of the original states, such as Virginia and Georgia, have run through many constitutions. These whilom slave states have not only changed greatly but changed suddenly. Society was dislocated by the Civil War, and has had to make more than one effort to set itself right.
The total number of distinct constitutions adopted in 1776 or enacted in the several states from that year down till 1909—the states being then 13 and in the latter 46 in number—is 127; and to these constitutions a vast number of amendments have been at different times adopted.5 The period since 1860 shows a somewhat greater frequency of change than the eighty-four years preceding; but that may be accounted for by the effects of the war on the Southern states. The average duration of a constitution has been estimated at thirty years, and there are now seven which have lasted more than sixty years. Both whole constitutions and particular amendments are frequently rejected by the people when submitted to them at the polls. This befel six draft constitutions and more than twenty-eight amendments between 1877 and 1887.
Putting all these facts together, and bearing in mind to how large an extent the constitutions now, whether wisely or foolishly, embody ordinary private and administrative law and therefore invite amendment, the American democracy seems less inclined to changefulness and inconstancy than either abstract considerations or the descriptions of previous writers, such as Tocqueville, would have led us to expect. The respect for these fundamental instruments would no doubt be greater if the changes in them were even fewer, and the changes would be fewer if the respect were greater; but I see little reason to think that the evil is increasing.
A few more observations on what the constitutions disclose are needed before I conclude this necessarily brief sketch of the most instructive sources for the history of popular government which the nineteenth century produced—documents whose clauses, while they attempt to solve the latest problems of democratic commonwealths, often recall the earliest efforts of our English forefathers to restrain the excesses of mediæval tyranny.
The constitutions witness to a singular distrust by the people of its own agents and officers, not only of the legislatures but also of local authorities, as well rural as urban, whose powers of borrowing or undertaking public works are strictly limited. Even the judges are in some states restrained in their authority to commit for contempt of court, and three recent constitutions contain severe provisions against abuse of his veto and appointing power by the governor, and against bribery offered to or by him.6
They witness also to a jealousy of the federal government. By most constitutions a federal official is made incapable, not only of state office, but of being a member of a state legislature. These prohibitions are almost the only references to the national government to be found in the state constitutions, which so far as their terms go might belong to independent communities. They usually talk of corporations belonging to other states as “foreign,” and sometimes try to impose special burdens on them.
They show a wholesome anxiety to protect and safeguard private property in every way. The people’s consciousness of sovereignty has not used the opportunity which the enactment of a constitution gives to override private rights; there is rather a desire to secure such rights from any encroachment by the legislature: witness the frequent provisions against the taking of property without due compensation, and against the passing of private or personal statutes which could unfairly affect individuals. The only exceptions to this rule are to be found in the case of anything approaching a monopoly, and in the case of wealthy corporations. But the “monopolist” is regarded as the enemy of the ordinary citizen, whom he oppresses; and the corporation—it is usually corporations that are monopolists—is deemed not a private person at all, but a sort of irresponsible tyrant whose resources enable him to overreach the law. Corporations are singled out for special taxation and are evidently the objects of growing suspicion and hostility, for the newer constitutions multiply provisions for holding them in check and keeping them under close supervision. Michigan and Mississippi limit their duration. Oklahoma denies them the rights of ordinary citizens before the courts; some states forbid trustees to invest in corporate securities. Labour laws are enacted to apply to them only. A remarkable instance of this dread of monopolies is to be found in the Constitution of Illinois of 1870, with its provisions anent grain elevators, warehouses, and railroads.7 The newer constitutions of other Western states, such as California and Texas, are not less instructive in this respect. Nor is it surprising that efforts should be made in some of the more recent instruments to strike at the combinations called “trusts.”
The extension of the sphere of state interference, with the corresponding departure from the doctrine of laissez faire is a question so large and so interesting as to require a chapter to itself in my second volume. Here it may suffice to remark, that some departments of governmental action, which on the continent of Europe have long been handled by the state, are in America still left to private enterprise. For instance, the states neither own nor manage railways, or telegraphs, or mines, or forests, and they sell their public lands instead of working them. There is, nevertheless, visible in recent constitutions a strong tendency to extend the scope of public administrative activity. Most of the newer instruments establish not only railroad commissions, intended to control the roads in the interest of the public, but also bureaux of agriculture, labour offices, mining commissioners, land registration offices, dairy commissioners, insurance commissioners, and agricultural or mining colleges. And a reference to the statutes passed within the last few years in the Western states will show that more is being done in this direction by the legislatures, as exponents of popular sentiment, than could be gathered from the older among the Western constitutions.
A spirit of humanity and tenderness for suffering, very characteristic of the American people, appears in the directions which many constitutions contain for the establishment of charitable and reformatory institutions, and for legislation to protect children.8 Sometimes the legislature is enjoined to provide that the prisons are made comfortable; or directions are given that homes or farms be provided as asylums for the aged and unfortunate.9 On the other hand, this tenderness is qualified by the judicious severity which in most states debars persons convicted of crime from the electoral franchise. Lotteries are stringently prohibited by some of the recent constitutions.
In the older Northern constitutions, and in nearly all the more recent constitutions of all the states, ample provision is made for the creation