James Willard Hurst, The Growth of American Law: The Law Makers

Boston: Little, Brown & Co., 1950; pp. 237.38, 240-46. Reprinted by permission of James Willard Hurst.

3. Social Functions: Constitutional Legislation

We have seen that the Federal Constitution as a rule kept its original character as a document which fixed the basic frame of government, allocated power among the major agencies, and stated some general limitations on official power. But after 1830 state constitutions were filled with increasing amounts of specific legislation. Often these were the products of intense party or interest-group conflicts. State constitutional change occasionally, of course, involved revision of governmental structure, but when this was so, it was with little deliberation or debate.

A great variety of specific matters were written into state constitutions. But the matters of real controversy which gave the formal constitution-making process its distinctive role in legislation fell into two categories: suffrage and apportionment, and economic regulation. State constitutions were used in effect to decide where and how the weight of votes should be felt in party and class conflict. Sometimes this was done by the way in which the right to vote was defined. Sometimes it was done through the apportionment of the districts in which the people's representatives were to be elected. State constitutions

were also used, more or less haphazardly, to decide particular questions about the role that the government should play in the economy; some interests sought to write into constitutions stronger guarantees of property and limitation upon the extent of public regulation; other interests sought to broaden the authority of the state to regulate or perform services, or wanted the constitutions to limit more strictly state favors for special groups.

A. Suffrage and Apportionment Battles

In one of the persistent trends in our constitutional law, all adult citizens gained the right to vote. In theory this concerns the structure of government: Why, then, does it belong in this analysis of the use of constitutions as vehicles of legislation? The answer is in the practice rather than the theory of politics. The vote was not extended to broader classes of citizens as a result of any dispassionate pursuit of a political ideal. Party battles and class feeling went into the trend, with as much of opportunism as of principle. Those who fought for extended suffrage often wanted to write it into the constitution simply to put a political victory of the time and place into the form most difficult for their opponents to upset.

Hot class conflict swirled about the adoption of white male suffrage in the first state constitutions after 1776. The social and political conditions of the succession of frontier states then, however, made it a taken-for-granted point. Next, prejudice against the foreigner was fanned for political advantage; definition of the voting rights of the foreign born became an issue in constitution making in Michigan in 1837, for example, and in Indiana in the 1850's and for a generation thereafter; on the West Coast from the 1870's into the twentieth century men saw no incongruity in writing race prejudice into their constitutions by denying the vote to Asiatics. Some of the militant idealism of the Abolitionists went into the

Fifteenth Amendment, but the more immediate and practical pressure for it came from passionate, partisan determination to keep the Republican party in control of the Union for an indefinite future. Women's suffrage ran its eventually successful course into the first quarter of the century. Back of this battle for the vote, of course, were strong ideas about women's social status. But these were no more important to the outcome than the very specific, if naive, conceptions that many politicians and interest groups, as well as reformers, held about the effect that the women's vote would have on such "moral" issues as control of liquor.

An expanded suffrage was closely related to the tendency to put an increasing amount of legislation into state constitutions. The constitution-making process showed more sensitivity to popular political currents, and hence a greater readiness to write into constitutions more detailed limits on government authority, and more specific authorizations for government services and protections.

B. Contests over Economic Regulation

Property-the getting, distributing, and holding of it was the object of most of the substantive policy and limits on power that were written into state constitutions. The preponderance of such issues in constitutional legislation testified how far the law in the United States was concerned with the economic balance of power.

At first analysis, surprisingly few of these constitutional enactments of economic policy could be labeled of conservative origin. Most of them were products of the liberal politics of their times, expressing either the liberal's hopes or his disillusioned reading of experience. The explanation of this "liberal" background of constitutional legislation lay in the judge-made law of the constitution. Conservatives had their constitutional protection from judges rather than from the specific terms of constitutions. Operating under a few broadly phrased constitutional declarations, judicial review provided the more ready, and flexible protections for property. Among the specific constitutional limitations, the notably conservative ones were the limits put on taxation and public expenditure. Even here the picture was confused; in their origin most of the limits on spending, in particular, marked revolt against the earlier excesses of the promoter; in the 1930's, however, they provided points for conservative attacks upon spending policies with which states tried to meet the downswing of the business cycle.

Whether regard be had to those constitutional provisions resulting from liberal or from conservative drives, the main note was negative. The fact was not without meaning for appraisal of the strengths and weaknesses of political liberalism in the United States. In their definitions of policy for the general welfare, our constitutions were overwhelmingly negative. They stated limits on power rather than objectives of power. They showed more distrust than confidence in the uses of authority.

This was partly a consequence of the form of our governments. The federal government was wholly one of delegated powers; of necessity thus the Federal Constitution stated positive objects of national policy and spoke of grants of power. The state governments inherited the historic authority of general government. The state constitutions naturally, therefore, dealt largely with the limitation of powers that resided in state governments without the need of affirmative grant.

But government and politics do not move just to vindicate a legal theory. The negative emphasis in state constitutions continued because it fitted strong, if more or less inarticulate, beliefs among the people as well as the social setting which shaped those beliefs. At first, not much positive government seemed to be needed in this wealthy new country. This was no less true, though the people's practical attitude toward government led them to make some affirmative demands on it even at the outset. Too, in this setting, it was right for the individual to stand on his own feet. In every community there were some bad men whose badness must be punished or controlled. But this kind of thing was abnormal, and should be handled by specific prohibitions and regulations as the need appeared.

Until the 1930's the prevailing political notion was in terms of the bad men and restriction. New ideas stirred before this; but they did not control during the years when our formative constitutions were written. The New York constitutional convention of 1938 was concerned to declare that government had positive responsibilities, and powers accordingly, to provide health insurance, highway safety, urban transport, slum clearance, and low-cost housing. But this expressed a new current of thought concerning government's role in society, a current that did not begin to gather force until close to the end of the nineteenth century.

The persistent theme of the limitations written into state constitutions after the 1840's was the desire to curb special privilege. The trend began with general or detailed prohibitions on the enactment of "special" and "local" legislation. The related fear, that special favors would be sought under cover, was expressed in requirements that every bill bear a title clearly stating its subject matter, and that every bill deal with but one subject. The same fear was behind

insistence upon many requirements, hopefully designed to insure full publicity and open deliberation of the merits of legislation, through three readings, reference to committee, recording of the yeas and nays, and the like.

Real, if naive, public protest spoke through such provisions; its stimulus was in revealed fraud and corruption in public-land dealings and in the getting and granting of franchises, subsidies, and rate privileges for turnpikes, canals, river improvements, toll bridges, and, of course, especially railroads and street railways. So also between 1840 and 1880 banking was singled out, either as a wholly prohibited subject of legislation, or at least as one on which there must be no "special" laws. People's attitudes toward banks wavered in the nineteenth century, more or less according to the swings of the business cycle. Banks were vastly unpopular when the "colonial" frontier saw in them the grasping representatives of the settled and wealthier parts of the country; they were popular when, as local institutions, they seemed to offer easy money; but when the collapse came, they were blamed for speculative excesses. On the whole, during this period, the net judgment was unfavorable, as the constitutions testified.

The rapid, vast, and ruthless expansion of the railroads in the thirty years after the Civil War brought the second wave of constitutional limitations. States and local governments responded to early popular enthusiasm and to the pressures of railroad promoters, and liberally and often heedlessly granted land and money subsidies, subscribed to stock, and lent the public credit to build railroads. Railroad building proved very expensive, the more so because in conspicuous instances it was conducted for the greatest profit of the promoters. Lines were laid out in areas that could not for many years, if ever, support them. State and local governments found themselves out-of-pocket and burdened with longterm debts. The people found that the railroads for whose building these sacrifices had been made were often not completed; or, if they were built, were in such precarious financial condition that they could not bring the expected cheap and efficient transportation. The public reaction was the more intense because the railroads used their power arbitrarily, allowing rebates and fixing discriminatory rates, to the favor of some shippers and localities and the injury of others.

State constitutions first reflected these facts in amendments strictly prohibiting the grant of public money or credit by the state or local governments to private enterprises. These provisions first appeared in the '70s, but were enacted mainly in the late '80s, and thence to the end of the century. Other amendments set almost absolute bans upon the borrowing of money by the state or, less often, by local governments; government henceforth was to pay as it went,

out of current revenue. There appeared new recognition that taxes were in their effects an important form of economic regulation, affecting the distribution of wealth and power. Constitutional amendments limited or forbade tax exemptions. They defined taxable subjects more broadly, and occasionally expressed an effort to lift the tax load somewhat from the farmer mortgagor and put it on the mortgagee.

In a score or more of states another kind of constitutional change grew out of the railroad expansion. This was the creation of regulatory commissions, protected by constitutional status against legislative tampering. This it is clear, came from no abstract idea that the symmetry of government structure required constitutional provision for the new administrative bodies. The men who put these enactments into constitutions did so to settle contests between popular parties and the railroads for control of the government machinery, and to settle these in a way that they hoped would stick.

4. Social Functions:

The Motives for Constitutional Legislation

Why did people go to the trouble of using the formal processes of constitution making in order to pass what often amounted simply to specific legislation? Mainly, they used this alternative channel for lawmaking because it offered new opportunities for change and promised permanence. Where constitutional amendments dealt with the structure of government power-which, theoretically, was the only thing that constitutions should deal with-there was also the desire to put basic decisions into permanent form; there was sometimes also a recognition that such changes should be in a form that firmly established the legitimacy of the government. Generally, however, as we have seen, when the people used the constitutional forms to set up state government structure, they did so out of a rather matter-of-fact acceptance of the practical need for adopting certain familiar institutions. The specific legislation written into state constitutions was often prompted by much more particular motives.

The two factors, of permanence and a new avenue to change, were closely related in the use of state constitutions for the enactment of particular policies. Men felt that legislation in constitutional form would be harder to upset, because the procedure for amending a constitution was more involved than passing a statute. Curiously, this stress on permanence often only illustrated a more general motive for putting legislation into the constitutions: that because of its independence from the everyday institutions of government, the constitution-making process might offer opportunities for changes that could not be had through other channels. This independence might not only facilitate certain changes, but also insure that, once made, they would stay.

When certain interests sought permanence for their policies by putting them into constitutional form, they expressed their distrust of what they could accomplish through the ordinary agencies of government; they expressed also their fears of what their opponents might be able to accomplish through the ordinary agencies. Plainly this was behind the constitutional amendments that forbade government to loan public credit, incur long-range debt, or spend public money to subsidize private promotions. A similar concern led many states to grant constitutional status to railroad regulatory commissions. In California, for example, such a commission was first set up by statute, but the railroads caused its repeal. In the California constitutional convention of 1878-1879, farmer and labor groups united to re-establish a railroad commission on a basis secure from legislative restriction; the delegates saw themselves as truer representatives of the people, enacting the people's legislation in a form that would last. A contrasting example appeared in the provision of the New York constitution of 1821 that fixed the taxes to pay debts incurred for building canals. Here the impetus to constitutional enactment was conservative. The more settled part of the state feared that after the canals were built, the relatively new and poor western regions of the state would try to cut taxes needed to pay off the canal debts.

The constitution-making process was used not only to conserve a victory won, but to skirt obstacles in the ordinary agencies to the enactment of new policy. Sometimes the effort was to break a log jam in the legislature. The Massachusetts convention of 1917 furnished an example. A leading issue there was whether the constitution should be amended to prohibit the grant of money to aid sectarian institutions. Those who sought this action from the convention apparently did so because they had tried for more than fifteen years without success to induce the legislature to propose such an amendment. Virginia offered another instance. The railroads for years fought efforts to abolish the fellow servant rule by statute. Proponents of the change, however, finally made it plain that if they could not win via the legislature they were probably going to win through the constitutional convention that met in 1901-1902. At that point the legislature abolished the rule.

It was not always the legislature which was bypassed through constitutional enactment. The process was used also to overrule judicial decisions adverse to some substantial interest or demand in the state. Compared with the influence that judicial review had upon United States law and politics, the number of such instances was not impressive. But their existence reminded that change could not be dammed up indefinitely.

Federal constitutional history supplied two notable examples: The Eleventh Amendment overruled

Chisholm v. Georgia, to make plain that a state could not be sued without its consent by a private party in the federal courts. The Sixteenth Amendment overruled Pollock v. Farmers' Loan & Trust Company, to establish that Congress might tax incomes. Examples of this constitutional "reversal" of decisions could also be seen in the work of the California constitutional convention of 1878-1879. In suits brought by banking interests, the California court had ruled that the old constitution did not permit "property" taxes to be laid on intangibles, including the value of a mortgagee's interest in mortgaged land. The farm debtors in the 1878 convention insisted that provision be made for taxing intangible wealth, especially mortgage interests. Another enactment of the 1878 convention set up a state board of tax equalization. This replaced a board created under legislation which the California court had declared unconstitutional; the court held that the statute attempted an invalid delegation of power, and that it also violated a provision of the old constitution which put the assessment and collection of taxes in locally elected officials. Under the old system certain localities, notably those dominated by large landholders, had shifted state taxes to other sections by reducing assessments; local needs were met by raising local tax rates on these assessed values. The 1878 convention seemed for the moment to have corrected the situation. But it did not clearly state the powers of the new state board of equalization. The court thus had to interpret the provision, and in doing so considerably restricted the new board's power to interfere with local assessors' favors to special interests. At best the slow-moving process of constitutional legislation was not equipped to match the more flexible power of the courts.

Constitutional amendment was sometimes used to forestall possible judicial challenge to legislative action. This was probably one reason why the New York constitutional convention in 1938 adopted various provisions declaring the legislature's authority to provide added public services in the state. Because the California constitution could be amended rather easily, this approach seems to have been taken often in that state; the California legislature proposed as constitutional amendments some measures that amounted to statutes, where the legislature feared that the courts might question their validity if they were passed as legislation.

Legislation enacted into state constitutions often involved the deepest political and social feeling of the time. Men often felt that it was critically important to give constitutional status to some declaration of policy which to them embodied a matter of principle or symbolized a great victory. Such efforts helped to exalt the idea of the constitution among our political beliefs. Nevertheless, a realistic appraisal of the bulk of the constitutional legislation did not add up to a very impressive estimate of its importance. In most

cases such specific enactments of policy did not direct, but merely recorded, the currents of social change. Most of this constitutional wisdom was the wisdom of hindsight. So far as much of this constitutional law was obeyed, this was because it was enacted when particular conflicts had reached a peak, and comparatively soon thereafter men's interests had so shifted as to relieve the pressure. Or the constitutional provisions merely registered an already formed public opinion whose weight, rather than the force of the law, changed the operations of government.

Even where constitutional legislation had force, the verdict was still a mixed one. It was undoubtedly worthwhile that it be demonstrated now and then that change too long dammed up through ordinary government channels could be affected by constitutional

Discussion Notes

1. Is it true today, as Professor Hurst said above, that most constitutional legislation did not direct, but merely recorded, the currents of social change and "merely registered an already formed public opinion. . ."?

2. Regarding the matter of "constitutional legislation," see also, Orrin K. McMurray, "Some Tendencies in Constitution Making," California Law Review 2 (March 1914): 209-11; Note, "California's Constitutional Amendomania," Stanford Law Review 1 (January 1949): 279; Note, "Initiative and Referendum-Do they Encourage or Impair Better State Government?" Florida State University Law Review 5 (Fall 1977): 925.

3. Walter Dodd emphasized an important reason for "legislation" in state constitutions:

Similar reasons in some cases account for the placing of legislation in the constitution itself. For example, when the highest state court has declared unconstitutional a statute limiting labor on public works to eight hours a day, the people may put into the constitution an authorization for such legislation, but they may with equal brevity put the legislative action into the constitution itself.

Walter Dodd, "The Function of a State Constitution," Political Science Quarterly 30 (June 1915): 213.

4. The use of state constitutional amendments to overrule state civil liberties decisions is treated in Chapter 3, Section F.

5. Law and economics scholars consider statutes and constitutional provisions to be "long-term contracting" between special interests and legislators. For a "law and economics" explanation of state constitutional provisions as "a particu

amendment. It is extremely dangerous to social stability for a substantial opinion to find the regular channels of political action blocked. But experience suggested that the constitution-making process should be used only occasionally, if it were not itself to produce dangerous rigidity in government. Constitutional change was likely to be relatively difficult and slow to achieve. Specific policy, enacted in this resistant form according to the judgment and passion of the time, might prove a dangerous barrier to flexible treatment of later situations. The rigidity of some early prohibitions on banking, and of some later limitations on public financial operations, demonstrated the point. The processes for the enactment of policy into constitutional form served best by the reminder of their existence rather than by frequent use.

larly durable type of long-term legislative contract...because constitutional rights are harder to repeal than ordinary legislation," see W. Mark Crain and Robert D. Tollison, "Constitutional Change in an Interest-Group Perspective," Journal of Legal Studies 8 (January 1979): 166. See also William M. Landes and Richard A. Posner, "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics 18 (December 1975): 892.

6. For another point of view about state constitutions, see Donald S. Lutz, "The Purposes of American State Constitutions," Publius: The Journal of Federalism 12 (Winter 1982): 31-32:

A written constitution is a political technology. In a sense it is the very embodiment of the technology for achieving the good life. In addition, each constitution will contain sets of techniques for achieving the good life that will vary according to the vision that is being pursued, and the vision will be established by those writing the constitution. . . . The constitution is the plan for a way of life both in the sense of containing a description of (1) what that life should be like, and (2) a way of life. The former would be accomplished by enunciating the major principles guiding the good life envisioned, listing the values which are supportive of such a life, and describing the moral content of such a life, and thus providing a definition of justice. The latter would include a description of political offices, the duties of each office, how each is to be filled, how the offices interact to reach collective decisions, and who is eligible to hold each office-in effect, a design for the distribution of power.