CONSTITUTIONAL BASIS OF STATE GOVERNMENT [Footnote: For a fuller discussion of the constitutional basis of state government, see Chapter XXII of Beard'sAmerican Government and Politics. ]
573. CONSTITUTIONAL LIMITATIONS ON STATE GOVERNMENTS.—Under the Articles of Confederation the states exercised practically sovereign powers; in the interests of a strong National government the Constitution adopted in 1789 distinctly limited the scope of state government. The Federal Constitution transferred many important powers from the states to the Federal government, and imposed certain specific limitations upon state governments. The more important of these limitations are as follows:
No state may, without the consent of Congress, lay or collect imposts and duties upon exports and imports. The single exception to this constitutional prohibition is that a state may lay such imports or duties as are absolutely necessary for executing its inspection laws. No state may lay a tonnage duty without the consent of Congress.
No state may levy a tax on the property, lawful agencies, or instrumentalities of the Federal government. This is not a constitutional limitation, but was deduced by Chief Justice Marshall from the nature of the Federal system. In recent years, however, this doctrine has been modified to mean that no state may tax a federal instrumentality if such a tax wouldimpair its efficiency in performing the function which it was designed to serve.
States may legislate concerning local commercial matters, but no state may interfere with interstate commerce. No state may pass any law impairing the obligation of contracts. The states have practically no control over the monetary system. They may not coin money, emit bills of credit, or make anything but gold and silver coin legal tender. States may charter and regulate state banks, however, and may also authorize a state bank to issue notes for circulation.
No state may make or enforce any law which abridges the privileges or immunities of citizens of the United States. No state shall pass any bill of attainder, by which is meant a legislative act which inflicts punishment upon some person without ordinary judicial trial. Nor may any state pass anex post factolaw, that is to say, a law which imposes punishment for an act which was not legally punishable at the time when it was committed. Lastly, no state may deprive any citizen of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.
574. POWERS OF STATE GOVERNMENTS.—Federal law is the highest law of the land, and no state constitution, state statute, or local law or ordinance, may contravene it. But beyond this restriction, the authority of the state is supreme. Just as state government must defer to Federal authority, so local government is subservient to state authority. Just as the Federal Supreme Court may declare unconstitutional any executive or legislative act, either of the National, state, or local authorities, so the Supreme Court of any state may declare null and void the acts of state or local authorities which conflict with its constitution. Though they are limited by the Federal Constitution in matters which are preeminently national, the states reserve to themselves a vast body of authority. Almost all of the ordinary activities of life are controlled by state or local governments, rather than by the Federal government.
575. CLASSIFICATION OF STATE CONSTITUTIONS: ACCORDING TO AGE.—Each of the forty-eight states in the Union has a written constitution. To bring out the fundamental similarities and differences among the various state constitutions, these documents may be classified in two ways, first as to age, and second, in the light of democratic development.
If state constitutions are classified on the basis of age, it will be noted that the constitutions of Massachusetts, Connecticut, Rhode Island, and other New England states show signs of having been strongly influenced by colonial precedents. Next come constitutions which in form and general content stand midway between the earlier New England constitutions and those of more recent years. The constitutions of New York (1894), Pennsylvania (1873), Indiana (1851), Wisconsin (1848), Kentucky (1891), Minnesota (1857), and Iowa (1857), are examples. Next come those constitutions of the southern states which have been revised within the last quarter of a century. Finally, we may note that California, Oregon, Oklahoma and a few other western states have recently drafted new constitutions in which there has been a more or less radical departure from the precedents set in the older commonwealths.
576. CLASSIFICATION OF STATE CONSTITUTIONS: IN THE LIGHT OF DEMOCRATIC DEVELOPMENT.—Between 1776 and 1800 American state constitutions were generally brief and conservative. Between 1800 and 1860 the growing tendency toward democratic control resulted in the formation of state constitutions which were more and more liberal. During this period fear of the masses was superseded by distrust of the executive and an unbounded faith in the people acting in their collective capacity. The suffrage was extended, the governor and often state judges came to be elected by direct vote, and the power of the state legislature was enlarged.
After 1860 there was a reverse movement. This was due partly to a growing faith in the executive, and partly to a reaction against the abuse of power by state legislatures. Particularly the more recent state constitutions have limited the power of the state legislature, increased the power of the executive, provided for the centralization of the state administration, and shortened the ballot. The present tendency among state constitutions is to continue in the direction of the above-mentioned reforms.
577. THE BILL OF RIGHTS.—A vital part of a state constitution is the bill of rights, roughly corresponding to the first ten amendments to the Federal Constitution. Generally the bill of rights affirms the principle of republican government, maintains that all powers are inherent in the people, and declares that all free government is formed by the authority of the people. A typical bill of rights also provides that the laws of the state shall not be suspended except by the legislative assembly, and includes the traditional limitations on behalf of private rights. These include the right of free speech; the right to jury trial; the free exercise of religious worship; the right peaceably to assemble and petition the government for redress of grievances; the privilege of the writ ofhabeas corpusexcept in case of rebellion, invasion, or public danger; the prohibition of excessive bail, and cruel and unusual punishments; and compensation for private property when taken for public use.
578. THE FRAMEWORK OF GOVERNMENT.—A second part of a typical state constitution deals with the distribution of powers, the limitations upon state officials and other elements in the framework of government. Especially in the more recent constitutions is the form of state government outlined in considerable detail. In addition to providing a system of checks and balances by separating the executive, legislative, and judicial powers of state government, this part of the constitution defines and limits the suffrage, provides for the organization of the state legislature, and prescribes the limitations under which the legislature must operate. The election of the Governor and other important state officials is provided for, as is the relation of rural and municipal government to the state government. This part of the constitution likewise creates the state judicial system, though the regulation of details with regard to jurisdiction, procedure, and appeals is generally left to the discretion of the state legislature.
579. STATE FINANCES.—A third division of a typical state constitution places a number of limitations upon the financial powers of the state legislature. These provisions are often detailed and complicated and hence are difficult to summarize. Their general purpose, however, is to fix a debt limit beyond which the legislature cannot go, and to compel that body to make adequate provision for the payment of interest and principal in the case of debts which shall be incurred.
580. CONTROL OF ECONOMIC INTERESTS.—The more recent state constitutions provide in considerable detail for the regulation of economic interests within the state. The activities of industrial organizations are often narrowly restricted. In many states the constitution provides for a corporation commission with large powers in the regulation of rates and charges, as well as general supervision of corporate business. Many recent constitutions specify the conditions under which women and children may be employed in industrial establishments.
581. PROVISION FOR THE GENERAL WELFARE.—An increasingly important part of the state constitution deals with the general welfare. Such vital concerns as the public school system are dealt with. In a typical western state, for example, the constitution requires the legislature to provide free instruction in the common schools of the state for all persons between the ages of five and twenty-five. The same document sets aside certain revenues for educational purposes. The safeguarding of the public health, and detailed provision for the creation and maintenance of public institutions for the dependent, defective, and delinquent classes, are other concerns of this part of the state constitution.
582. PROVISION FOR AMENDMENT.—In about two thirds of the states the constitution provides for its own amendment by a constitutional convention composed of delegates elected by the voters of the state. The convention method is universally employed when a new constitution is desired. Sometimes the state constitution provides for the holding of such conventions at regular intervals, but generally the initiative is left to the legislature. When, by vote or by resolution, this body declares in favor of a convention, the proposition is placed before the voters. If a majority of these favor the project, the legislature arranges for the election of delegates, and fixes the time and place of the convention sessions. After the convention has completed its work, it is customary for the new constitution to be submitted to the people for approval.
Another common way of amending the state constitution, found in every state except New Hampshire, is through legislative action subsequently ratified by popular vote. By this method separate constitutional amendments may be adopted, without necessitating a wholesale revision of the constitution. Such individual amendments are usually proposed by the legislature and are later submitted to popular vote. In some states only a majority vote of the legislature is required for the proposal of amendments, but ordinarily a special majority of two thirds or three fourths of the members of each house is required. In a few states, amendments cannot be considered until they have been proposed by two successive legislatures. After the amendment has been proposed for the second time, it must be ratified at the polls.
Within the last decade several states, particularly in the West, have adopted a more direct method of amending the constitution. This is through the Initiative and Referendum. [Footnote: The general question of the Initiative and Referendum is treated in Chapter XXXVII.] In Oregon, for example, 8 per cent of the legal voters may petition for a proposed amendment to the constitution. The proposal is then submitted to the voters, and if it receives a majority of all votes cast, it becomes part of the state constitution. Arizona, Arkansas, California, Colorado, Michigan, Missouri, Nebraska, Nevada, North Dakota, and other states allow this type of constitutional amendment.
1. What are the chief limitations imposed upon state governments by the Federal Constitution?
2. Discuss the range of authority enjoyed by state governments.
3. Classify state constitutions on the basis of age.
4. Discuss the classification of state constitutions in the light of democratic development.
5. What is the nature of a "bill of rights"?
6. Discuss the framework of government as provided for in the state constitution.
7. What provision for state finances does a typical state constitution contain?
8. What are some of the provisions in state constitutions concerning economic interests?
9. How may a state constitution provide for the general welfare?
10. Describe the three ways in which state constitutions may be amended.
1. Beard,American Government and Politics, chapter xxii.
2. Guitteau,Government and Politics in the United States, chapter viii.
3. Munro,The Government of the United States, chapter xxviii.
1. What is the significance of the "Revolutionary constitutions"? (Guitteau, page 86.) 2. What is the relation of present-day state constitutions to the original colonial charters? (Munro, page 404.) 3. Distinguish between the "constituent" and the "law-making" power. (Munro, page 405.) 4. Into what two parts may the early state constitutions be divided? (Guitteau, page 86.) 5. Discuss the check and balance system as provided for in the constitutions of the various states. (Guitteau, page 89.) 6. What authority controls the admission of new states into the Union? (Beard, pages 443-445.) 7. What does the constitution of Oklahoma say concerning the writ ofhabeas corpus? (Beard, page 449.) 8. Describe the procedure in a constitutional convention. (Munro, pages 410-411.) 9. What is the relation of the state constitution to the state courts? (Beard, pages 452-453.) 10. Enumerate the principles which commonly govern the attitude of the state courts toward the acts of the state legislature. (Beard, pages 452-453.)
1. The history of your present state constitution.
2. The bill of rights in your state constitution.
3. The framework of government as provided for in the constitution of your state.
4. Methods by means of which your state constitution may he amended.
5. Classify and briefly characterize the amendments which have been appended to the constitution of your state.
6. Meaning of the term "constitution." (Gettell,Readings in Political Science, pages 282-283.)
7. Types of constitutions. (Gettell,Readings in Political Science, pages 284-285; Kimball,State and Municipal Government in the United States, chapter ii.)
8. Methods of amending constitutions. (Gettell,Readings in Political Science, pages 299-300.)
9. Difficulties of constitutional amendment in the United States. (Gettell,Readings in Political Science, page 301.)
10. Procedure in the state constitutional convention. (Massachusetts Constitutional Convention Bulletins, No. i. Hoar,Constitutional Conventions.)
11. Recent changes in constitutions. (Dealey,Growth of American State Constitutions from 1776 to the end of the Year 1914.)
12. Present tendencies in state constitutions. (Reinsch,Readings on American State Government, pages 443-449.)
13. The constitution of Oklahoma. (Reinsch,Readings on American State Government, pages 450-464.)
14. A comparison of constitutional amendment in Europe and constitutional amendment in the United States. (Borgeaud,Adoption and Amendment of Constitutions in Europe and America.)
15. British constitutions. (Gettell,Readings in Political Science,pages 286-287; 292-293.)
16. French constitutions. (Gettell,Readings in Political Science,pages 297-298.)
17. German constitutions. (Gettell,Readings in Political Science,pages 298-299.)
18. Does the Federal Constitution too narrowly restrict the activities of the state governments?
19. Does the bill of rights in your state constitution adequately protect your rights?
20. Does the constitution of your state too narrowly restrict the financial powers of the state legislature?
21. Is your state constitution too easy of amendment? Is it too difficult of amendment?
22. Recent state constitutions tend to be very long and detailed. What are the advantages and disadvantages of this development?
583. THE ELECTION OF THE GOVERNOR.—In every state in the Union the Governor is elected by popular vote. In most of the states this election takes place, together with that of other state officials, on the Tuesday following the first Monday in November. Usually a gubernatorial candidate is required to be at least thirty years of age. He must be a United States citizen, and also a resident of his state of at least five years' standing.
The Governor's term varies from two years in Massachusetts to four years in more than twenty states. In general, the term of office is increasing. The average salary received by a state Governor is $5000 a year.
584. LIMITATIONS UPON THE GOVERNOR.—A number of factors operate to limit the power of the state Governor.
The Federal Constitution limits his authority by declaring that persons charged with crime in, and escaped from, a neighboring state, must be delivered up to the executive authorities of the state in which the crime is charged to have been committed.
The executive power of state government is not concentrated under the Governor, but is shared by the Governor with a host of administrative officials. Many of these officials are elected directly by the people, and cannot, therefore, be held accountable by the Governor. Furthermore, the actual execution of the state laws rests primarily with municipal and other local officials, and over these officers the Governor has little or no control. The express powers of the President of the United States have been rather liberally interpreted by the courts, but the powers of the state Governor have generally been construed in a narrow and literal sense. In many states the power of the Governor rarely or never extends beyond the express limits imposed by the state constitution.
585. EXECUTIVE POWERS OF THE GOVERNOR.—The Governor is charged by the state constitution to see that the laws are faithfully executed. This is similar to the chief duty of the President of the United States, but whereas the President is aided by subordinate administrative officials over whom he has complete control, the Governor must act through a large number of state and local officials over whom he has little effective control.
Of some value, however, is the power of the Governor to exercise general supervision over the various executive officers of the state. He enjoys, in addition, the power to appoint many of the subordinate administrative officials. Usually these appointments must be confirmed by the upper house of the state legislature. In most cases the Governor cannot remove officials so appointed without the consent of the senate or council.
The Governor is commander-in-chief of the armed forces of the state, and when the regular officers of the law are unable to cope with domestic violence, he is empowered to call out the militia. In this connection, the Governor has the power of suspending the writ ofhabeas corpus, though most states declare that this writ may not be suspended except in times of rebellion and invasion. Two or three states have recently provided that the writ ofhabeas corpusmay not be suspended in any case whatsoever.
586. LEGISLATIVE POWERS OF THE GOVERNOR.—In general the Governor occupies the same relation to the state legislature, as does the President toward Congress. Thus the Governor may send periodic messages to the legislature, and may recommend such legislative measures as he believes desirable. The Governor often communicates with the legislature concerning the financial condition and needs of the state. The Governor may also call special sessions of the state legislature, for the consideration of urgent matters. In case the two houses of the legislature are unable to agree upon a time for adjournment, the Governor may adjourn the state legislature.
In one respect the Governor's power of veto exceeds that of the President, for in about two thirds of the states the Governor may veto individual items in appropriation bills. This privilege is denied the President, who must accept or reject a measure as a whole. Like the President, the Governor influences legislation through his relations with the leaders of his party in the legislature, as well as through his power of the patronage.
587. JUDICIAL POWERS OF THE GOVERNOR.—In almost every state the Governor has considerable control over the issuance of pardons and reprieves, in the case of all offenses committed against the state. In some states the power to issue pardons and reprieves is exercised with the consent of the state legislature, in other states the Governor shares this power with a board of pardons; in a few states the Governor may act alone.
588. TENDENCY OF THE GOVERNOR'S POWER TO INCREASE.—The earlier state constitutions tended to restrict the powers of the Governor, and to extend liberal grants of power to the state legislature. Of recent years the abuse of legislative power has tended to encourage suspicion of the legislature and a growing confidence in the Governor. As a consequence, the Governor's term is in many states increasing. In the effort to shorten the ballot and concentrate responsibility for the state administration upon some one official, various states are increasing the appointive power of the Governor. In a few states the Governor now has authority to make special inquiries into the workings of the various executive departments, with a view to checking inefficient and irresponsible methods of work. In some states the Governor's share in budget-making is increasing. In the majority of states the general tendency toward a shorter ballot, the reorganization of the state administration, and other methods of reforming state government, will probably continue to enlarge the power and influence of the Governor.
589. THE OLDER GROUP OF ADMINISTRATIVE OFFICERS.—Aside from the Governor, the administrative officers of the state fall into two groups: First, the older officers, who are relatively few, and who are almost always elective; and second, the newer officers, boards, and commissions, who are relatively numerous, and who may be either elective or appointive.
The first group comprises such officers as the Lieutenant Governor, the Secretary of State, the State Treasurer, the Auditor or Comptroller, and the Attorney-General. These older officers are usually elected at the general state election for a term varying from state to state. These officers are not under the control of the Governor, but fulfill duties prescribed by the constitution, and are responsible only to the people and to the courts. They may be, and often are, of a different political party than the Governor, and since they are not under the control of that official, they often work at cross-purposes with him. This lack of co÷rdination is in striking contrast to the harmony of action existing between the President of the United States and the heads of the Federal Executive Departments.
590. THE NEWER GROUP OF ADMINISTRATIVE OFFICERS.—As state government has increased in complexity, the older group of administrative officers has been supplemented by the addition of a large number of new officers.
These newer administrative officials are quite numerous, but their general character may be indicated by dividing them into two classes:
The first class includes individual officers, such as, for example, a superintendent of prisons, a state architect, a state historian, a commissioner of health, a food inspector, a geologist, a commissioner of corporations, a commissioner of banking, a superintendent of public works, and a state surveyor.
Besides individual officers, the newer group of administrative officials includes a large number of boards and commissions which have been created by the state legislature and endowed with large powers for the study and control of specific matters. The following boards and commissions are examples of this second class: A state civil service commission, a tax commission, a board of charities and correction, a water supply commission, a tax equalization board, a quarantine commission, a voting machine commission, a board of pharmacy, a highway commission, and a public service commission.
591. DEFECTS OF STATE ADMINISTRATION. [Footnote: For a fuller discussion of this problem, see Chapter XXXVI.]—The enlargement of the state administration by this creation of numerous individual offices, boards, and commissions indicates an attempt on the part of state governments to grapple with the problems of democracy. Nevertheless, this rapid growth of the state administration has had serious consequences. Once created, many of the newer officers have attempted to perpetuate themselves. State legislatures have been harassed by boards and commissions seeking unnecessary appropriations. Politicians without expert training or ability are often placed on boards and commissions dealing with technical matters.
Responsible and efficient state government is rendered difficult by the inability of the Governor effectively to control the few elective officials who constitute the older group of administrative officers; an even greater difficulty arises from the creation and expansion of the newer group of officers. The excessive number of individual officers, boards, and commissions makes for inefficient and irresponsible government. Some of these officials are elected by the people, others are appointed by the Governor. Their terms vary so widely that, as Professor Beard has pointed out, the appointing power never has an opportunity to make a clean sweep and introduce more efficient administrative methods. There is little or no co÷rdination between the various administrative offices, and very little centralization of responsibility.
592. THE STATE OF CIVIL SERVICE.—The spoils system has long constituted a defect, not only in the Federal government but in American state government as well. [Footnote: This problem is further discussed in Chapter XXXIV.] And as in the case of the National government, this evil has been attacked primarily through the merit system. New York state led the way in 1883 by passing a comprehensive Civil Service Act. This law provided for a commission authorized to co÷perate with the Governor in preparing rules, classifying the state civil service, and conducting the examinations for the positions to be filled. Since then, Massachusetts, Wisconsin, Colorado, New Jersey, California, Ohio, Illinois, and other states have adopted some type of civil service system.
State civil service laws are largely modelled after the national Civil Service Act of 1883. In most of the legislating states laws of this type provide for competitive examinations of a practical nature; they prohibit political and religious interrogatives; and they forbid the assessment of holders of civil service positions for political purposes. Appointment and promotion are upon the basis of merit, although as in the case of the Federal civil service, the standards for judging the character and capacity of individual officeholders have not yet been perfected.
1. What are the qualifications of the state Governor?
2. What limitations restrict the power of the Governor?
3. Outline the executive powers of the Governor.
4. What are the chief legislative powers of the Governor?
5. Describe the judicial powers of the Governor.
6. Is the power of the Governor increasing or decreasing?
7. Into what two groups may state administrative officers be divided?
8. Name some of the officials in the older group.
9. Discuss the character of the newer group of officials,
10. Name the chief defects of state administration.
11. Discuss the state civil service.
1. Beard,American Government and Politics, chapter xxiv.
2. Guitteau,Government and Politics in the United States, chapter x.
3. Munro,The Government of the United States, chapters xxx and xxxi.
4. Reed,Form and Functions of American Government, chapter x.
1. How many states elect the Governor for two years? (Beard, page 490.)
2. How is the Governor of Mississippi elected? (Beard, page 489.)
3. What is the function of the lieutenant governor? (Beard, pages 499- 500.)
4. What are the functions of the state treasurer? (Beard, page 500.)
5. What are the chief duties of the attorney-general of the state? (Beard, page 500.)
6. Discuss the impeachment process in state government. (Beard, pages 508-509.)
7. Name some miscellaneous duties of the Governor. (Reed, page 116.)
8. What is the nature of the Governor's messages? (Reed, page 118.)
9. How is a vacancy in the Governorship filled? (Munro, page 433.)
10, Name some states in which the movement for the consolidation of state administrative offices is active. (Guitteau, page 112.)
1. Term, qualifications, and salary of the Governor of your state.
2. A short biography of the present Governor of your state.
3. Platform on which the present Governor of your state was elected
4. A comparison of the influence exerted by the President of the United States upon the National legislature, and the influence exerted upon the state legislature by the Governor of your commonwealth.
5. A classification of the administrative officers of your state.
6. History of the merit system in your state.
7. A comparative study of state governors in the United States. (Beard,American Government and Politics, page 491.)
8. The legislative power of the Governor. (Mathews,Principles of American State Administration, chapter iii.)
9. The veto power of the Governor. (Munro,The Government of the United States, pages 435-438.)
10. Some special functions of the Governor. (Mathews,Principles of American State Administration, chapter v.)
11. The administrative power of the Governor. (Mathews,Principles of American State Administration, chapter iv.)
12. Relation of the Governor to law enforcement. (Reinsch,Readings on American State Government, pages 26-40.)
13. The organization of the state administration. (Mathews,Principles of American State Administration, chapter vii.)
14. The work of the state administration. (Munro,The Government of the United States,chapter xxxi; Kimball,State and Municipal Government in the United States,chapter ix.)
15. The selection of state officials. (Mathews,Principles of American State Administration,chapter viii.)
16. The removal of state officials. (Mathews,Principles of American State Administration, Principles of American State Administration,chapter ix.)
18. Should the veto power of your state Governor be still further restricted? Should it be enlarged?
19. Should the administrative offices in your state be reorganized and consolidated?
20. Ought the merit system in your state to be extended?
21. Advantages and disadvantages of choosing administrative officials by direct vote.
593. STRUCTURE OF THE STATE LEGISLATURE.—The representative branch of state government is known under different names in various states, but the term "state legislature" is in more or less general use.
The state legislature is invariably a two-chambered body; the upper house is the smaller and is called the senate, while the lower and more numerous branch is variously known as the house of representatives, house of delegates, or assembly.
Usually the state senate differs from the lower house in certain important particulars. The senatorial districts from which members of the upper house are elected are always larger than are the districts from which members to the lower house are chosen. Senators are usually chosen for longer terms than are representatives. As in the case of the National Senate, the senate (in most states) is made a continuous body by the provision that its members shall begin their terms at certain periodic intervals. In the lower house of the state legislature, on the other hand, all of the members take their seats at the same time.
594. BASIS OF REPRESENTATION.—For the purpose of electing members of the state legislature, practically all of the states are divided into numerous senatorial and representative election districts. Some states apply the rule that representatives in the state legislature shall be apportioned among districts containing practically an equal number of inhabitants.
Other states, however, provide exceptions to this rule. For example, Alabama, Florida, New York and other states provide that each county shall have at least one member in the house. Often the result of this arrangement is that the smaller or more sparsely populated counties are over-represented in the state legislature, while the more populous counties are under-represented.
Several states, notably Connecticut and Vermont, arrange representation in the state legislature so that with respect to population, cities are under-represented and rural districts are over- represented. [Footnote: For a discussion of the problem of minority representation in state legislatures, see Chapter XXXV.]
595. MEMBERSHIP.—The state constitution determines the qualifications of those who are entitled to vote for state legislators. [Footnote: For an enumeration of these qualifications, see Chapter XXXIII, Section 415.] Generally, anyone qualified to vote for a state legislator is also eligible to membership. However, holders of both Federal and state offices are excluded from sitting in the state legislature.
In some states the term of a senator is the same as that of a representative, but generally senators are elected for a longer term than are members to the lower house. Representatives are generally chosen for two years, senators for four.
In all states, members of the legislature are paid, either a fixed annual salary or aper diemallowance based upon the length of the legislative session. In most states senators and representatives receive equal compensation.
All state legislators are privileged from arrest or civil process during the session. In addition they enjoy the usual privilege of free speech in their official capacities.
596. ORGANIZATION.—Formerly state legislatures met annually, but at present the great majority convene only once in two years. In the effort to cut down the amount of superfluous legislation, a number of state constitutions now restrict the legislative session to from forty to ninety days. The legislature may adjourn itself to meet later in special session, or the Governor may call special sessions. The Governor may adjourn the legislature, if the two houses fail to agree upon a time for adjournment.
In internal organization, the state legislature resembles Congress. Except that the lieutenant governor is often the presiding officer of the senate, each house chooses all of its own officers. Each house determines its own rules of procedure and keeps a journal of its proceedings. In addition, each house exercises the right of deciding upon the qualifications of its members, and disciplines and punishes its members for misconduct. As in the national legislature, work is expedited by the committee system. The party is a dominant force in the state as well as in the national legislature.
597. POWERS OF THE STATE LEGISLATURE—The law-making powers of the state legislature extend to practically all subjects. The presumption is that this body has a right to legislate upon any subject, unless specific prohibitions have been imposed upon it by either the Federal or the state constitution.
The Federal Constitution forbids any state legislature to emit bills of credit, coin money, or pass laws impairing the obligation of contracts. Neither bills of attainder norex post factolegislation may be enacted by a state legislature. The Federal Constitution likewise declares that state legislatures may neither abridge the privileges and immunities of citizens of the United States, nor deprive persons of life, liberty, or property without due process of law. No state may deny to any person within the state jurisdiction the equal protection of the laws.
Restrictions imposed by the state constitution fall into several groups. These include restrictions in favor of trial by jury, religious freedom, and other privileges usually embodied in a bill of rights; provisions controlling the grant of special favors to corporations; restrictions upon the financial powers of the state legislature; provisions defining the framework of state government; and prohibitions upon the power of the legislature to pass special and local laws. [Footnote: A special or local law is one which applies to some particular individual or corporation, or to some particular city, county, or other locality. Prohibitions upon special and local laws are necessary in order to prevent the legislature from extending special favors to particular individuals or localities. ]
598. HOW A STATE LAW IS MADE.—Bills may originate in either house of the state legislature, except that in most states money bills must originate in the lower chamber.
To illustrate law-making in the state legislature, let us assume that a bill is introduced in the lower house. This may be done by any one of several methods. Any member of the house may deposit a bill in a box near the speaker's desk. Sometimes a bill is introduced by the report of a committee, or even by a messenger from the senate. When the bill has been introduced, it is given a first reading. With the consent of the house, the speaker then refers the measure to the appropriate committee. The adverse report of the committee generally kills the bill; but if the bill is favorably reported, and this report is approved by the house, the bill is placed on the order of second reading and is debated section by section, unless by unanimous vote it is advanced to the third reading. If the bill passes the second reading, it is generally referred to the committee on revision. It is then engrossed, reported back to the house for the third reading and the final vote. Sometimes the yeas and nays of this final vote are entered upon the journal, so that responsibility may be fixed upon each member.
The bill then goes to the senate, where the procedure is very much like that of the house, except that the committee of the whole sometimes takes the place of the order of the second reading as conducted in the house.
599. THE BILL GOES TO THE GOVERNOR.—In every state except North Carolina, a bill which has passed both branches of the legislature must then go to the Governor for approval. If this officer signs it, it becomes law. If he disapproves of it, he returns it with his objections to the house in which it originated. In spite of this objection by the Governor the legislature may enact the measure into law, if a sufficiently large majority in each house votes in favor of the bill. This majority is usually two thirds of the members in each house.
Generally the Governor has a ten-day period in which to consider bills. If a bill is not returned to the legislature with his objections within this period, it automatically becomes law without his signature, unless the adjournment of the legislature prevents its return to that body. In most states the Governor has the important privilege of vetoing particular items in appropriation bills, while sanctioning the rest of the measure.
600. DEFECTS IN STATE LEGISLATION. [Footnote: For a fuller discussion see Chapter XXXVI.]—There is, among students of American government, a general agreement that the legislative procedure of the various states evidences a number of serious defects.
One of these defects is the absence of responsibility. Any member of the state legislature may introduce as many bills as he likes, but he need not assume responsibility for any of them.
Another serious evil is the lack of experience and technical skill on the part of legislators. Legislators are frequently ignorant of the subject matter with which they are called upon to deal. There is a tendency for legislators to ignore the effect of a new statute upon the existing body of law. Nor is the constitutionality of the measure contemplated always taken into account. Ill-advised and pernicious legislation is the result.
Log-rolling and lobbying constitute another defect of state legislation. Log-rolling leads to the passage of numerous bills without their adequate scrutiny by individual members, and without either individual members or legislative committees assuming responsibility for those measures. The pressure exerted upon state legislatures for legislation favoring special interests is still great.
601. THE REFORM OF LEGISLATIVE PROCEDURE.—A few states have attempted to overcome the lack of technical information on the part of legislators by providing for expert bill drafters. In New York, for example, the state legislature has been provided with a number of competent bill drafters whose duty it shall be, during the session of the legislature, to draw bills, examine and revise proposed bills, and advise as to the legal effect of any legislation. These bill drafters may be set to work on the request of either house, or of a committee, member, or officer thereof.
A large number of states now have a legislative reference bureau which keeps a careful record of the laws passed in the various states of the Union. This bureau maintains a library, and issues bulletins for the guidance of legislators.
In 1909 Wisconsin created the office of reviser. This officer keeps a loose-leaf system of laws, and collects court decisions affecting statutes. At the beginning of each session this officer also presents to the committees on revision of each house of the legislature, bills providing for such consolidation and revisions as may be completed from time to time. The reviser supervises the preparation, printing, and binding of such compilations of particular portions of the statutes as may be ordered by the head of any state department.
There is an increasing tendency to curb lobbying in state legislatures. The laws of New York and Wisconsin may be taken as typical. That of New York provides that every person retained or employed for compensation as a counsel or agent by any person, firm, corporation, or association, to promote or oppose, directly or indirectly, the passage of any bill or resolution, must be registered every year in the office of the secretary of state, and must give the name of the person by whom he is retained. The Wisconsin law provides that legislative agents or counsels may not attempt to influence members privately, but must confine themselves to arguing before committees and filing printed briefs with the members of the legislature.
1. Discuss the structure of the state legislature.
2. In what ways does the senate usually differ from the lower house?
3. What is the basis of representation in the state legislature?
4. How are the qualifications of state representatives determined?
5. Compare the term of senator with that of state representative.
6. Outline the organization of the legislature.
7. Compare the organization of the state legislature with that of the national legislature.
8. What is the scope of power enjoyed by the state legislature?
9. What limitations are placed upon state legislatures?
10. Describe the making of a state law.
11. Discuss the veto power of the Governor.
12. What are some defects of state legislation?
13. Outline some attempts to eliminate these defects.
1. Beard,American Government and Politics, chapter xxv.
2. Guitteau,Government and Politics in the United States, chapter ix.
3. Munro,The Government of the United States, chapter xxix.
4. Reed,Form and Functions of the United States Government, chapter xi.
1. Under what four heads may the limitations on state legislatures be grouped? (Guitteau, page 101.)
2. What limitations are imposed upon state legislatures by the republican nature of state government? (Guitteau, page 102.)
3. In what states are annual legislative sessions held? (Guitteau, page 96.)
4. Why has the legislative session been shortened in some states? (Reed, pages 123-124.)
5. Under what three heads may state legislative power be classified? (Guitteau, page 100.)
6. What is the most important of the powers of the state legislature? (Reed, page 128.)
7. What are the non-legislative duties of the state legislature? (Guitteau, pages 100-101.)
8. What can be said as to the personnel of the state legislature? (Reed, page 126.)
9. What is a "rotten borough"? (Beard, page 521.)
10. Why are state laws frequently of inferior quality? (Munro, page 428.)
1. A comparison of the upper with the lower house of your state legislature.
2. Gerrymandering in your state.
3. Occupations and professions represented in the membership of your state legislature.
4. The character of legislation recently enacted by your state legislature.
5. Development of the law-making department. (Gettell,Readings in Political Science, pages 341-342.)
6. General principles of legislative organization. (Gettell,Readings in Political Science, page 343.)
7. Advantages of the bicameral system. (Gettell,Readings in Political Science, page 344.)
8. The function of the legislature. (Gettell,Readings in Political Science, page 357.)
9. The lobby. (Reinsch,Readings on American State Government, pages 79-84.)
10. Financial procedure in state legislatures. (Reinsch,Readings on American State Government, pages 56-61.)
11. The actual work of making a law. (Reed,Form and Functions of American Government, chapter xii.)
12. Legislative apportionments. (Reinsch,American Legislatures and Legislative Methods, chapter vii.)
13. Obstacles to intelligent law-making. (Gettell,Readings in Political Science, pages 358-359.)
14. Danger of over-legislation in the United States. (Gettell,Readings in Political Science, page 361.)
15. The legislative reference bureau. (Reinsch,Readings on American State Government, pages 63-73.)
16. The relation of the state legislature to local government (Gettell,Introduction to Political Science, chapter xxii.)
17. Public forces influencing legislation. (Reinsch,American Legislatures and Legislative Methods, pages 275-298.)
18. Would shortening the length of the legislative session improve the character of legislation in your state?
19. Should members of the state legislature be residents of the districts from which they are chosen, or should they be chosen on a state-wide ticket?
20. Should our state legislatures be made unicameral? (See Munro,The Government of the United States, pages 416-418.)
602. ENGLISH COMMON LAW.—One important source of our system of jurisprudence is the English common law. This law is not found in the enactment of statutes, but consists of court decisions spread over several centuries. The common law has been defined as "that rule of civil conduct which originated in the common wisdom and experience of society," and which "in time became an established custom, and has finally received judicial sanction and affirmance in the decisions of the courts of last resort." [Footnote: W. C. Robinson, quoted inGovernment and Politics in The United States, by W. B. Guitteau, Houghton Mifflin Co., Boston, 1920.] The common law began its development in early England, and with the settlement of America was transplanted to this country. Though radically modified by American constitutional and statutory enactments it still remains the basis of our legal system.
603. EQUITY.—Common law tended to become so stereotyped and so inflexible that in some cases an application of the law worked an injustice. Very early in English history this situation gave rise to a new form of jurisprudence called equity. Equity is that legal system which supplements common and statute law by aiming to secure justice where a strict application of law would work an injustice. Equity developed in England after the Norman Conquest, and, like the common law, was transferred to this country in colonial times. A distinct set of chancery or equity courts was created to administer equity in early America, but at present equity is administered by the same judges that preside over the regular state law courts. Both equitable and legal relief may be secured in one suit.
604. STATUTES.—Another important source of law is the statutes enacted by the state legislature. Most state laws relate to the structure and functions of government, but statutory enactment is also employed to regulate a few branches of private law, including principally matters which affect the public at large as well as private individuals. Examples are laws relating to wills and succession to property, marriage and divorce, partnerships, and corporations.
The scope of the statutes is widening, and during the last half century several fields of the common law have been covered by statute. Criminal law, criminal procedure, and civil procedure have been codified in various states. Some states have attempted to codify the entire civil law, but experience has proved that this may easily render the law too rigid.
605. OTHER SOURCES OF LAW.—The state constitution, the Federal Constitution, and Federal laws and treaties with foreign countries are other sources of state law.
In summary, the various kinds of law which are enforceable in the state courts may be considered as forming a pyramid, built upward by the following steps: English common law, equity, state statutes, the state constitution, Federal statutes, treaties with foreign nations, and the Federal Constitution.
606. THE JUSTICE OF THE PEACE.—State courts are arranged in a progressive series. At the bottom of this series is the justice of the peace, who exercises jurisdiction over petty offenses and over civil cases involving very small amounts. Generally there is a justice of the peace in each township or other local district. In large cities the civil and criminal jurisdiction of the justice of the peace is usually divided between two sets of courts: first, the municipal or city courts, with a minor civil jurisdiction; and second, the police or magistrates' courts with jurisdiction over petty criminal offenses. The police or magistrates' courts have the power to make preliminary investigations in case of felonies or serious misdemeanors.
607. THE COUNTY COURTS.—Above the justices of the peace there are, in most states, a number of county courts, exercising limited jurisdiction. These courts, sometimes called courts of common pleas or district courts, have jurisdiction over civil cases involving considerable sums, as well as jurisdiction over most criminal offenses. In addition these courts usually consider appeals from the judgments of justices of the peace.
608. SUPERIOR OR CIRCUIT COURTS.—In many states there is a superior, circuit, or district court immediately above the county courts, though in some states this tribunal takes the place of the county courts. The superior court has jurisdiction over civil cases involving unlimited sums, as well as unlimited original jurisdiction over criminal matters. It may also try all cases over which the lower courts have no jurisdiction.
609. THE SUPREME COURT.—At the head of the state judicial system there is a court of last resort, known in various states by different names. It may be called the court of appeals, the court of errors and appeals, or simply the supreme court. Practically all of the cases coming before this court are appealed from the lower courts. Ordinarily it deals with points of law rather than of fact.
610. SPECIAL COURTS.—In addition to the regular state courts there are sometimes special tribunals for special purposes. Examples of such courts are the probate or surrogates' courts for the settlement of the estates of deceased persons; children's courts for the treatment of cases involving children; courts of domestic relations; and courts of claims for hearing claims against the state.
611. STATE JUDGES.—In almost all of the states judges are chosen by popular vote, though in half a dozen states the choice of these officials still lies with the legislature or with the Governor, or with both acting jointly. Judges of the higher state courts are generally chosen for a long period of time, even for life, while the judges of the lower courts are chosen for relatively short periods. Salaries vary from practically nothing but fee money for some justices of the peace to an average of $7000 a year for justices of the supreme court. The qualifications imposed upon judges include a minimum age of 25 to 35 years, and citizenship for a varying period of years. Another common requirement is residence within the state, or even residence within the judicial district. For judges of the higher courts it is the custom to demand membership in the legal profession. Judges may be removed by impeachment, and, in a few states, by use of the Recall.
612. OTHER COURT OFFICIALS.—The district or prosecuting attorney is an important official. Generally he is chosen by the voters of the county, though in some instances he is elected from larger areas. The district attorney represents the state in all criminal cases, and conducts the prosecution. This officer conducts a preliminary investigation into crimes and determines whether or not a prosecution should be instituted. If the decision is in the affirmative, he presents the case to the grand jury. If the grand jury returns an indictment, that is, if it demands that the accused be held for trial, the prosecuting attorney conducts the prosecution at the ensuing trial.
The clerk, or recording officer, is generally appointed by the court, though he may be elected by popular vote. The constable or sheriff is elected by popular vote. The clerk and the constable are charged with the execution of all orders, judgments, and decrees of the court.
613. RELATION OF STATE TO FEDERAL COURTS.—The framework of American government includes a dual system of courts, the Federal courts and the state courts. The jurisdiction of the Federal courts is specifically defined by the Federal Constitution, while the state courts have a jurisdiction which is limited only by the prohibitions of the state and Federal Constitutions. The two systems of courts are independent in the exercise of their respective powers, and have separate jurisdictions. In some cases, however, the state courts have a concurrent jurisdiction with the Federal courts, and a litigant has a choice of tribunals before which to bring suit. In most suits the decision of the state supreme court is final, but cases involving Federal law may be appealed for final decision to the Supreme Court of the United States.
614. POWER TO DECLARE STATE STATUTES UNCONSTITUTIONAL.—Just as the Federal courts are the final interpreters of all domestic law, so the state courts have the power to pass upon the constitutionality of statutes enacted either by the state legislature or by local law- making bodies. The state constitution is the fundamental law of the state, and it is the duty of the state courts to see that all state and local legislative acts conform to this fundamental law.
615. POWER OVER EXECUTIVE OFFICIALS.—Through their power to pass upon the legality of executive acts, the state courts exercise some degree of control over executive officials. If a state governor were illegally to remove an official from office, for example, the courts could reinstate the latter.
The state courts also have the power to issue writs of mandamus and injunction. The former may be used, under certain circumstances, to compel an executive officer to perform his duty; the latter writ may be used to prevent either state officials or private individuals from committing illegal acts.
616. CIVIL JURISDICTION.—The jurisdiction of the state courts is either civil or criminal.
The purpose of civil law is to protect the rights of the individual and to redress his wrongs. The individual rights which are the concern of civil law fall under three heads: First, the right of personal security, including the right of protection against violence; second, the right of personal liberty, including the rights set forth in the bill of rights of the state constitution; third, the rights of property, including the right to acquire and hold property, and the right to demand fulfilment of contracts made under state law.
617. CIVIL PROCEDURE.—If an individual believes that his rights have been violated, he, as plaintiff, is entitled to file a complaint with the proper court. The sheriff or constable then summons the defendant to appear in court, and the clerk of the court issues a summons or subpoena to all witnesses which either party to the suit desires to have testify. Generally either party may demand a trial by jury. Both plaintiff and defendant are ordinarily represented by counsel which present the different sides of the case to the judge and jury. The judge decides what evidence may be properly presented to the jury. After the closing argument of the plaintiff's counsel, the judge instructs the jury on the legal points involved in the case. The jury then retire and attempt to reach an unanimous decision. If able so to agree, they return a verdict for either plaintiff or defendant, and after the verdict has been accepted by the court, judgment is rendered. If the jurors have been unable to come to an unanimous decision, the case is ordinarily tried with another jury, though in a few states an unanimous verdict in civil cases is not required.
If the decision of the court is accepted as final, the judgment is enforced. On the other hand, the dissatisfied party may appeal the case to the next higher court on the ground that the verdict was contrary to the weight of evidence, or because of errors of law committed by the judge. Under certain circumstances the judge who tries the case may be induced to grant a new trial.
618. CRIMINAL JURISDICTION.—The purpose of criminal law is to punish those who have committed public wrongs,i.e.wrongs against the state or community. Crimes are of two types: first, felonies, including such grave offences as murder, arson, burglary, and larceny; and second, misdemeanors, including such lesser offenses as bribery, knowingly receiving stolen goods, libel, assault and battery, and disturbance of the peace. Usually felonies are punished either by death, or by a long prison sentence. Misdemeanors are ordinarily punished by fines or by imprisonment for a short term.
619. CRIMINAL PROCEDURE.—A criminal proceeding usually begins with the arrest of the accused person. Generally, though not always, arrest is in pursuance of a warrant. As soon after arrest as possible, the accused is brought before a magistrate for a preliminary examination. If the examining magistrate finds that there is probable cause for holding him for trial, the accused is committed to jail to await trial. Unless the charge is murder, however, the defendant may be released on bail.
If the charge is a serious one, indictment by the grand jury is the next step. If this jury decides that the evidence is insufficient, the charge is dismissed and the prisoner released. The grand jury meets in secret, and hears only the charges against the accused. These are generally presented by the prosecuting attorney. After the defendant is indicted, the prisoner is brought into court and allowed to plead. If he pleads guilty, the judge may forthwith impose sentence and there is no trial. If the plea is "not guilty," a trial is arranged, a jury of twelve men impanelled, and the trial begins.
The case is opened by the prosecuting attorney, since it is the duty of the state to assume the defendant innocent until he is proved guilty. The prosecuting attorney presents his witnesses, each of which the defendant's attorney may cross-examine, and in turn allows the defendant's attorney to present the defense. The prisoner is not questioned at any stage in the trial, unless he is willing to take the stand as a witness in his own behalf.
After the prosecuting attorney and the defendant's counsel have completed their case, the judge sums up the evidence brought out by each side, and instructs the jury as to the law involved. The jury then retire and attempt to reach a verdict. Generally such a verdict must be unanimous, and if this cannot be secured, the jury is dismissed and the case is held for re-trial. If the verdict is "not guilty," the prisoner is discharged; if he is found guilty, sentence is imposed by the court, either immediately or at some future date. [Footnote: For a discussion of the legal aspects of the problem of crime, see Chapter XXI.]
1. What is meant by the term "common law"?
2. Define equity. How did it arise?
3. What is the importance of the statutes as a source of state law?
4. What are some other sources of law?
5. Describe the work of the justice of the peace.
6. What is the jurisdiction of the county courts?
7. What is the chief function of the state supreme court?
8. Name some special state courts.
9. What is the function of the district attorney?
10. What is the relation of state to Federal courts?
11. Discuss the chief powers of state courts.
12. What is the scope of the civil jurisdiction of the state courts?
13. Describe a civil trial.
14. What are the two types of crimes?
15. Outline the steps in a criminal trial.
1. Beard,American Government and Politics, chapter xxvi.
2. Guitteau,Government and Politics in the United States, chapter xi.
3. Munro,The Government of the United States, chapter xxxiv.
4. Reed,Form and Function of American Government, chapter xiii.
1. Define common law. (Guitteau, page 115.)
2. What is the relation of the old Privy Council to the origin of English common law? (Guitteau, page 116.)
3. What is a tort? (Beard, pages 558-559.)
4. What is the relation of the state judiciary to the other departments of state government? (Reed, page 160.)
5. To what extent do the Federal courts interfere with the decisions of the state courts? (Munro, page 492.)
6. By what three methods may judges be chosen? (Beard, page 550.)
7. Name some states in which judges are not chosen by the people. How are judges chosen in these states? (Beard, page 550.)
8. Compare the salaries of American judges with the salaries of European judges. (Beard, page 552.)
9. By what three methods may judges be removed? (Munro, pages 496-497)
10. In what state has the codification of the civil code been most successful? (Reed, page 168.)
1. Provisions in your state constitution with respect to the state judiciary.
2. The choice of judges in your state.