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 cannot be obtained owing to the small number who vote.1 This has its good side, for it is a check on hasty or frequent change. But it adds greatly to the difficulty of working a rigid or supreme constitution, that you may find an admitted, even if not very grave evil, to be practically irremovable, because the mass of the people cannot be induced to care enough about the matter to come to the polls, and there deliver their judgment upon it.
These defects are so obvious that we are entitled to expect to find correspondingly strong grounds for the maintenance, and indeed the steady extension of the plan of legislating by and through a constitution. What are these grounds? Why does American practice tend more and more to remove legislation from the legislature and entrust it to the people?
One could quite well imagine the several state governments working without fundamental instruments to control them. In a federal government which rests on, or at least which began from, a compact between a number of originally separate communities, the advantages of having the relations of these communities to one another and to the central authority defined by an instrument placed beyond the reach of the ordinary legislature, and not susceptible of easy change, are clear and strong. Such an instrument is the guarantee for the rights of each member placed above the impulses of a chance majority. The case is quite different when we come to a single homogeneous community. Each American state might now, if it so pleased, conduct its own business, and govern its citizens as a commonwealth “at common law,” with a sovereign legislature, whose statutes formed the highest expression of popular will. Nor need it do so upon the cabinet system of the British colonies. It might retain the separation from the legislature of the executive governor, elected by the people, and exercising his veto on their behalf, and yet dispense altogether with a rigid fundamental constitution, being content to vest in its representatives and governor the plenitude of its own powers. This, however, no American state does, or has ever done, or is likely to do. And the question why it does not suggests a point of interest for Europeans as well as for Americans.
In the republics of the ancient world, where representative assemblies were unknown, legislative power rested with the citizens meeting in what we should now call primary assemblies, such as the Ecclesia of Syracuse or the Comitia of Rome. The same plan prevailed in the early Teutonic tribes, where the assembly of the freemen exercised all such powers as did not belong to the king. The laws of the kings of the Angles and Saxons, the capitularies of Charlemagne, were promulgated in assemblies of the nation, and may be said, though emanating from the prince, to have been enacted by the people. During the Middle Ages, these ancient assemblies died out, and the right of making laws passed either to the sovereign or to a representative assembly surrounding the sovereign, such as the English Parliament, the older scheme surviving only in such primitive communities as some of the Swiss cantons. The first reappearance in modern Europe of the scheme of direct legislation by the people is, so far as I know, the provision of the French Constitution framed by the National Convention in 1793, which directs that any law proposed by the legislative body shall