in most states elected by the people for fixed terms of years. I do not ignore the strongly marked democratic character of even the first set of constitutions, formed at and just after the Revolution; but that character manifested itself chiefly in negative provisions, i.e., in forbidding exercises of power by the executive, in securing full civil equality and the primordial rights of the citizen. The new democratic spirit is positive as well as negative. It refers everything to the direct arbitrament of the people. It calls their will into constant activity, sometimes by the enactment of laws on various subjects in the constitution, sometimes by prescribing to the legislature the purposes which legislation is to aim at. Even the tendency to support the executive against the legislature is evidence not so much of respect for authority as of the confidence of the people that the executive will be the servant of popular opinion, prepared at its bidding to restrain that other servant—the legislature—who is less trusted, because harder to fix with responsibility for misdoing. On the whole, therefore, there can be no doubt that the democratic spirit is now more energetic and pervasive than it was in the first generation. It is a different kind of spirit. It is more practical, more disposed to extend the sphere of governmental interference, less content to rely on general principles. One discovers in the wording of the most recent constitutions a decline of that touching faith in the efficacy of broad declarations of abstract human rights which marked the disciples of Jeffrson. But if we compare the present with the second or Jacksonian age, it may be said that there has been in progress for some years past a certain reaction, not against democracy but towards a better scheme of democracy, a reaction as yet more discernible in feeling than in tangible results, fainter than the levelling movement of 1820–50, and not likely to restore the state of things that existed before that movement, yet noticeable as showing that the people do learn by experience, and are not indisposed to reverse their action and get clear of the results of past mistakes. The common saying that on the road to democracy there are vestigia nulla retrorsum is not universally true in America.
That there are strong conservative tendencies in the United States is a doctrine whose truth will be illustrated later on. Meantime it is worth while to ask how far the history of state constitutions confirms the current notion that democracies are fond of change. The answer is instructive, because it shows how flimsy are the generalizations which men often indulge in when discussing forms of government, as if all communities with similar forms of government behaved in the same way. All the states of the Union are democracies, and democracies of nearly the same type. Yet while some change their constitutions frequently, others scarcely change theirs at all. Let me recall the reader’s mind to the distinction already drawn between the older or New England type and the newer type, which we find in the 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;
