power was liable to abuse. The adoption of a constitution was “the act of the great democracy—the people themselves prescribing their own rule of civil action.” But leaving fundamental laws to the legislature meant “placing the exercise of power one step further from the source; and the people possess no direct power to correct the decision” (2:49).
For all his reliance on the “people,” though, Ranney was no more willing to trust them with power than he was to trust the legislators. Editor John O’Sullivan raised this basic question of Jacksonian majoritarianism in the first issue of the Democratic Review in 1837. O’Sullivan conceded the plausibility of the antidemocratic argument that “[m]ajorities are often as liable to error of opinion, and not always free from a similar proneness to selfish abuse of power, as minorities.” “A strong and active democratic government,” he averred, “is an evil, differing only in degree and mode of operation, and not in nature, from a strong despotism.” Because majorities could no more be trusted with power than minorities, the “best government is that which governs least.”1
At the Ohio constitutional convention the committee on public debt and public works incorporated this principle into its report by prohibiting the General Assembly from authorizing the state or any local government, “by vote of its citizens of otherwise,” to be a stockholder in a private corporation or to aid private enterprise in other ways. Some Democrats objected to the ban as undemocratic. One, proclaiming “vox populi, vox Dei,” demanded that the voters be allowed to decide whether the state should incur debt to finance internal improvements. Another contended that the prosperous portion of the state, having “waxed fat at the public crib,” had no right to deny “their poorer, because less favored, fellow citizens, the humble privilege of helping themselves with their own money.” But Ranney regarded the government’s power of taxation as a “dangerous power” by which the “proceeds of the industry of the citizens” are put “at the mercy of the State.” He denied the right of the majority to tax the minority for any purpose “beyond the support of government” and the execution of the laws. When a delegate moved to amend the committee’s report to allow local governments to vote funds for the completion of works already begun, Ranney claimed that the amendment “amounted to about this: that where the minority has been robbed once, it shall be proper to do it again” (1:292, 2:123, 2:308, 1:530, 2:215–16, 2:310–11).
From the widespread distrust of the General Assembly arose many issues related to the legislature: annual versus biennial sessions, the manner of apportionment, the executive veto, legislative power over corporate charters, and so on. Ranney’s positions marked him as a consistent and outspoken Radical Democrat, wary of government and very aware that the people were the fount of political authority. As one of his adversaries observed, “it is pretty difficult to get ahead of him in democracy” (2:430).
Ranney opposed annual legislative sessions because the greatest legislative evil was “too much legislation and the instability of the law”; or, as Ranney also said, echoing a popular phrase of the day, “the world was governed too much” (1:174–79; 2:145). He resisted proposals to extend state senate terms from two to four years because over such a long period of time, especially in a rapidly growing and changing state, the views of the people and their delegates might diverge (1:175, 179; 2:145). He wanted to fix the method of legislative apportionment in the constitution, leaving no discretion to flawed legislators who, as experience had shown, were too much tempted to gerrymander (1:144–45, 460; 2:708).
The widely held opinion at the convention that the General Assembly’s authority needed to be curtailed did not lead to a significant transfer of power to the executive branch of government. Most notably, the delegates refused to confer the veto power upon the governor. Ranney could not deny that the General Assembly passed too many laws and often acted with undue haste. But the remedy, he thought, lay in reducing the legislature’s power, not in giving more power to the governor (1:112).
Ranney also opposed what he considered an undue expansion of the governor’s patronage power. The selection of public officers by the General Assembly had been fraught with unpalatable wheeling and dealing. Ranney believed that the legislature’s “power to confer office” had done much “to discredit legislative bodies” and was a major source of “hasty and inconsiderate legislation” (1:112). Many delegates shared Ranney’s view. As a result the convention took from the General Assembly and gave to the electorate the power to elect judges, the secretary of state, and the state auditor and treasurer. Ranney successfully fought an attempt to increase the terms of state executive officers, other than the auditor, beyond two years (1:325, 330–31; 2:290).
Notwithstanding the trend toward popular election of public officials, the delegates disagreed over the method of selecting lesser officials, such as the directors of the state penitentiary and trustees of the deaf and dumb asylum and other state benevolent institutions. Some thought that the election of lower-level administrative officers was too burdensome a responsibility for the voters (1:365, 540). Ranney believed otherwise, at least regarding the penitentiary. The management of the state prison, he asserted, was no mere ministerial function but one of the most important jobs in the state. The directors had in their hands the lives of hundreds of individuals, the safety of the public, and great patronage and pecuniary interests (by which Ranney probably meant the hiring of employees and awarding of contracts). Rather than subject such vital offices to party influences, Ranney wanted to have the directors of the penitentiary, and of any future state prisons, elected directly by the people (2:342, 1:541). The convention yielded to the extent of giving the legislature the authority to determine the method of selecting the directors of the penitentiary; the trustees of all other state institutions would be appointed by the governor, with the advice and consent of the Senate (2:340–43).2
Ranney’s most notable, although largely unsuccessful, work at the convention involved the reformation of Ohio’s third branch of government, the judiciary. A bipartisan consensus on the need to revise the constitutional article on the judiciary overshadowed all other reasons for holding a convention. The constitution of 1802 provided for a supreme court, courts of common pleas, and justices of the peace, but for the most part it left the jurisdiction of the courts, judicial salaries, the establishment of common pleas circuits, and other court-related matters to the General Assembly. At its first session in 1803 the General Assembly gave the supreme court exclusive jurisdiction over cases involving divorce, alimony, and capital offenses, concurrent jurisdiction with the courts of common pleas over other major offenses, original jurisdiction in important civil cases, and the power to hear appeals from the courts of common pleas where the title to land was in question or where the amount in controversy exceeded one hundred dollars. The legislature soon expanded the supreme court’s appellate jurisdiction to cover all cases that originated in the courts of common pleas, possibly because the panel of common pleas judges that heard a case did not necessarily include a lawyer. This expansion of appellate jurisdiction imposed a heavy burden because in those days an appeal often meant a new jury trial in the supreme court. The common pleas courts had jurisdiction over all civil and noncapital criminal cases that were not relegated to justices of the peace, including probate and guardianship matters. Justices of the peace heard small civil and criminal cases.3
Constitutional limitations on the legislature’s power to regulate the structure of the court system posed serious problems for the lawmakers. The constitution specified an initial supreme court of three judges—a fourth could be added after five years—and required it to hold a session in every county every year. The court simply could not keep up with the demands of a rapidly growing state and a legislative propensity to create counties willy-nilly. In 1808 the General Assembly added a fourth judge and, as permitted by the constitution, divided the state into two districts. In each district two judges would hold sessions at the county seats. If the judges in a district disagreed on a question of law, or if they wanted the full court to consider a novel or particularly difficult legal issue, they could postpone the case. To hear postponed cases, at least three judges had to hold an extraordinary session in each district annually.4
The
