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 and maintenance of schools. Even universities are the object of popular zeal, though a zeal not always according to knowledge. Most Western constitutions direct their establishment and support from public funds or land grants.10 Some of the later constitutions contain significant provisions intended to propitiate labour. Thus Wyoming, California, Utah, and Idaho declare that eight hours shall be a lawful day’s work on all state and municipal works, Wyoming adding “in all mines.” Many prohibit the letting out of convict labour; and several prohibit contracts by which employers may attempt to escape from liability for accidents to their workpeople. Mississippi abolishes (1890), so far as concerns railroads, the established legal doctrine of an employer’s nonliability for accidents caused to a workman by the fault of a fellow workman.
Although a constitution is the fundamental and supreme law of the state, one must not conclude that its provisions are any better observed and enforced than those of an ordinary statute. When an offence is thought worthy of being specially mentioned in a constitution, this happens because it is specially frequent, and because it is feared that the legislature may shrink from applying due severity to repress it, or the public prosecuting authorities may wink at it.11 Certain it is that in many instances the penalties threatened by constitutions fail to attain their object. For instance, the constitutions of most of the Southern states have for many years past declared duellists, and even persons who abet a duel by carrying a challenge, incapable of office, or of sitting in the legislature. This may have checked the formal duel by challenge, which is now rarely heard of, but the practice of private warfare does not seem to have declined in Mississippi, Texas, or Arkansas, where these provisions exist. Virginia had such a provision in her Constitution of 1830. She repeated it in her Constitution of 1850, adding, however, that the disqualification should not attach to those who had offended previously—i.e., in violation of the Constitution of 1830.12 Shooting at sight, not uncommon in some parts, is neither morally nor socially an improvement on duelling, though apparently exempt from these constitutional penalties.
New York has been so much exercised on the subject of bribery and corruption, as to declare (amendments of 1874), not only that every member of the legislature and every officer shall take an oath that he has given nothing as a consideration for any vote received for him, and that the legislature shall pass laws excluding from the suffrage all persons convicted of bribery or of any infamous crime but also that the giving or offering to or receiving by an officer of any bribe shall be a felony. These provisions are further strengthened in her Constitution of 1894. The recent constitutions of North Dakota, Montana, and Wyoming declare logrolling to be bribery. South Dakota requires her legislators and officers to swear that they have not received and will not receive a free pass over a railroad for any vote or influence they may give, while Kentucky deprives of office (ipso facto) any legislative public officer or judge who accepts such a favour. And lobbying, which is openly practised in every building where a legislature meets, is declared by California to be a felony, and by Georgia to be a crime.
Direct Legislation by the People
The difficulties and defects inherent in the method of legislating by a constitution are obvious enough. Inasmuch as the people cannot be expected to distinguish carefully between what is and what is not proper for a fundamental instrument, there arises an inconvenient as well as unscientific mixture and confusion of private law and administrative regulation with the frame of government and the general doctrines of public law. This mixture, and the practice of placing in the constitution directions to the legislature to legislate in a certain sense, or for certain purposes, embarrass a legislature in its working by raising at every turn questions of its competence to legislate, and of the agreement between its acts and the directions contained in the constitution. And as the legislature is seldom either careful or well-advised, there follows in due course an abundant crop of questions as to the constitutionality of statutes, alleged by those whom they affect prejudicially in any particular instance to be either in substance inconsistent with the constitution, or such as the legislature was expressly forbidden by it to pass. These inconveniences are no doubt slighter in America than they would be in Europe, because the lawyers and the judges have had so much experience in dealing with questions of constitutional conflict and ultra vires legislation that they now handle them with amazing dexterity. Still, they are serious, and such as a well-ordered government ought to avoid. The habit of putting into the constitution matters proper for an ordinary statute has the further disadvantage that it heightens the difficulty of correcting a mistake or supplying an omission. The process of amending a constitution even in one specific point is a slow one, to which neither the legislature, as the proposing authority, nor the people, as the sanctioning authority, willingly resort. Hence blemishes remain and are tolerated, which a country possessing, like England, a sovereign legislature would correct in the next session of Parlament without trouble or delay.
It is sometimes difficult to induce the people to take a proper interest in the amendment of the constitution. In those states where a majority of all the qualified voters, and not merely of those voting, is required to affirm an amendment, it often happens that the requisite majority
