THE STATE CONSTITUTIONS

SECTION 1. Explanatory preface. Of the contents of the various State Constitutions, a threefold division may roughly be made; they usually contain, first, the Declaration of Rights; second, the political constitution and organization of the State; and third, very varied and miscellaneous restrictions and injunctions concerning legislation. I have attempted to incorporate herein the entire Constitution of every State, excepting only minute and detailed provisions, not of general interest, concerning minor administrative offices, courts, and municipal government. Where the wording in the several States is not identical, I have been careful to give the various forms when there is any possibility of a difference of meaning or legal effect.

This third part has grown out of all proportion to the others; in fact, in the newer Constitutions, particularly in the West, it far exceeds the other two in bulk and contains such a code of directions or inhibitions as to leave very little real legislative power to the Legislature. The Louisiana Constitution, for instance, contains one hundred and forty-four pages! But still more notable is that of Alabama, covering sixty-nine pages of fine print, and those of the eight new far Western States. Even in States which do not adopt the initiative and referendum, as some of these Western States do, the adoption of such an elaborate Constitution is practically direct legislation, "Legislation by the people." Naturally, there is a tendency in such cases to more frequent amendment; necessarily so when the Constitution, instead of embodying a few great principles and the broad framework of the State government, attempts to prescribe infinite details of legislation and of administrative machinery. Historically, and from the point of view of a Constitutional lawyer, such Constitutions are entirely unscientific. The late Governor Russell of Massachusetts, in his address before the Yale Law School, well pointed out the objections of putting such a mass of

things into the Constitution, both as depriving the Legislature of all sense of responsibility, and as discrediting the Constitution itself. Such a vast mass of directions embodying merely the temporary desires of a present majority, when either necessity or popular opinion requires a change, involves a necessity of such continual amendment and frequent alteration as to bring a written Constitution into contempt.

It must be borne in mind that this is a comparative digest of constitutional provisions only; it does not follow, of course, that there may not be in the several States statutes on the same subject.

All the forty-six States have Constitutions; not so the Territories, or the District of Columbia. Arizona, however, has a "Bill of Rights," though it has naturally no greater sanction than an ordinary territorial statute. In a few cases I have noted similar provisions in the United States laws which restrict the legislation of New Mexico and Arizona. References are also made in the Bill of Rights to the provisions of the United States Constitution or of the English and American constitutional documents on which such articles are founded; and the principles are fully discussed in the notes, and elsewhere.

It may generally be said that the Constitutions of the Western States are more elaborate, more cumbrous, and more frequently amended than those of the Eastern. One reason for this is, that in the West the State Constitution is frequently made the instrument for enacting laws which are in most States unconstitutional; another, that in the West many things are put in the Constitution which are elsewhere left to the Legislature. The constitutional provisions are, of course, much more stable than ordinary laws. Nevertheless, the practice is, as has been said, an objectionable one.

For the date of the latest State Constitutions and where they may be found, see the Table of Citations. States are cited in alphabetical order, and the words "Article" or "Section" are left out. That is to say, 1, 14, would be Article 1, Section 14, or whatever other division is used in the Constitution in question. If there is no citation, refer to the one of the same State last preceding. Many of the States, however, have the articles of the Constitution numbered continuously. The asterisk sign is used in the rare instances where, to complete the subject, a statute is cited.

Since the first edition of this part, published as the first part of Volume I. of "American Statute Law," in 1886, no less than eighteen

new State Constitutions have been adopted, counting Oklahoma. Of these, eight are of new Western States, but the other ten are new Constitutions adopted in the Eastern or Southern States. It is notable that none of the States of the middle West or New England, with the exception of New Hampshire, have adopted new Constitutions during this period of twenty years. The industry of constitution making is confined to the more radical States, or to those which have the greatest distrust of their legislators. My thanks are due to Mr. Robert H. Whitten of the New York State Library for a complete table of constitutional amendments adopted in the last twenty years. Owing to the negligence or stupidity of the State authorities in not printing these with the annual laws, this is a difficult matter to ascertain. In Oregon, indeed, where laws and constitutional amendments are adopted by initiative, the Secretary of State complains that they are "full of bad spelling, punctuation, omissions, and repeated words!" It appears, however, that only two states - Tennessee and Wyoming — failed to amend their Constitutions in the last twenty years, while California did so forty-two times!

§ 2. Interpretation of the State Constitutions. In some of the newer Constitutions we find the provision that the Constitution itself is mandatory and prohibitory, except where otherwise declared by express words.1

PART I

BILL OF RIGHTS

§ 3. Note to Part I. - The Bill of Rights of the English Statute 1 has been largely adopted in the States of the Union, somewhat modified and largely amplified by the addition of new provisions of a similar nature, founded on Magna Carta, the Declaration of Independence and the Constitution of the United States, old Province charters, and the Virginia and Massachusetts bills of rights.

§ 4. Bill of Rights Irrepealable. - Ten States declare that "to guard against transgression of the high powers delegated to the Legislature by the Constitution, everything in the Bill of Rights is declared to be excepted out of the general powers of Government, and shall forever remain inviolate; and all laws contrary to the Bill of Rights are void." 3 Meaning of course constitutions as well as statutes, a striking attempt to bind posterity.

"When men enter into a state of society they surrender up some of their natural rights to that society in order to insure the protec

omission in a new State Constitution. A precedent of such attempt may, however, be found in England, where in 1495 an act for the security of a subject serving a de facto king declared "Every Act made contrary to this statute shall be void and of no effect." (Taswell-Langmead, p. 295.)

1 1 W. & M. Sess. 2. This declara- terity would not, however, survive tion of rights, however, represents but principles old as Anglo-Saxon freedom, rewon from Norman or Stuart kings and thus finally codified in the Revolution of 1689. Magna Carta, won in like manner from John, was not superseded by it; in theory it had always been in force. The Declaration represents only additions, or, more correctly, precisions, of the old principles. In outward form the Constitution under Edward I. became essentially the same as in the present day. (Taylor, I. 424. See notes to §§ 10, 70, 130.)

So in Arizona "the Bill of Rights is the supreme law of the land, subject only to the United States Constitution and laws. And it cannot be amended or altered but by the concurrence of a majority of all the members elected

2 Compare U. S. C. Amts. 9, 10. to the Legislature, the vote to be taken Decl. Ind. § 2.

Ala. 1, 36; Ark. 2, 29; Del. Art. 1, ad fin.; Ky. 26; N. D. 24; N. M.* 1851, July 12, § 20; Pa. 1, 26; R. I. Preamble; Tenn. 11, 16; Tex. 1, 29; Va. 1, 17. This attempt to bind pos

by yeas and nays entered on the journal." B. Rts. 32. Neither can any other law!

A Bill of Rights is still necessary (R. White, p. 31).