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only four printed pages in Thorpe's collection of American constitutions. The New York constitution of 1777 (omitting the Declaration of Independence and other matter of the preamble) occupies about nine pages of that collection. We are told on good authority (Dr. Dealey, Growth of American Constitutions, p. 120) that "the earliest constitutions seldom contained over five thousand words and averaged much less. Now, the shortest constitution (Rhode Island's) contains about six thousand words, the average is about sixteen thousand, and the five largest are codes in themselves." There are 33,000 words in the Alabama constitution, 25,000 in the Virginia constitution, 45,000 in that of Louisiana and nearly 50,000 in that of Oklahoma.
Causes for the Change in the Content of Constitutions
This immense growth in the size of state constitutions is due to the incorporation of a vast mass of law that is not fundamental but incidental and statutory in character. The underlying reason for this departure from the idea that the constitution should contain only fundamental provisions of law governing the government is that under our constitutions the government has been irresponsible. This irresponsibility of the government has shown itself in two different ways that in themselves have operated to make the constitutions increasingly complex and verbose, viz.:
1. There has been a growing distrust of the legislature leading to the imposition of restrictions on that body and to the removal of many matters from its sphere of action
2. The legislature has failed to respond to popular desires and will, and the people have sought to obtain needed legislation through the constitutional convention and popular initiative
Distrust of the Legislature and Search for Responsibility
From the standpoint of this appraisal, namely, that the government should be responsible and efficient, the first of these causes for abandoning the true distinction between constitutional and statute law, namely the loss of popular confidence in the legislature, is the most important. Not only has the electorate grown so distrustful of the legislature that it has invaded the field of statute law; it has also added to constitution a mass of restrictions on the legislature with a view to preventing it from doing evil. We are told, for instance, that of the 287 articles in the Alabama constitution of 1901, thirty-six are restrictions in the form of a declaration of rights, thirty control legislative procedure, and eight are prohibitions on special and local legislation. In
the rearranged draft of the present constitution (See Appendix pp. 193 et seq.) it will be seen that sixteen out of forty-four pages (193 to 237) are in the nature of restrictions on the legislature and three pages more are in the nature of private law that owe their origin and continuation to similar causes. In other words, in an effort to secure responsibility, the voters have walled the legislature about with restrictions and enactments that it cannot change-with a resulting necessity for continual constitutional amendment which destroys all notion of the constitution being the fundamental law governing the government.
The Time for a Fundamental Change Has Arrived
The situation in which we now find ourselves is, in many respects, a travesty upon American political intelligence. All power is declared to be in the people whose will is to be expressed through an electorate and through representatives chosen by the voters. Our government thus organized is declared to be the most democratic instrument for legislation. and administration known to history; at the same time our written constitutional documents do not adequately provide for getting political issues before the electorate, and they record the fact that representatives cannot. be trusted and held responsible to the voters. Every constitutional convention, in fact, almost every election, produces a new set of limitations on the sphere of legislative action, and yet it is not apparent that our legislatures have grown more responsive and responsible or more efficient, or more economical in disposing of the resources at their command.
Under these circumstances, it would be desirable to discontinue the futile process of swelling our constitutions by limitations and statutory enactments unless we are ready to admit that our government is not representative and our elected officials are not to be made responsible to the electorate. It is nowhere evident that the petty restrictions and popular palliatives on which American ingenuity has exhausted itself have been effective in preventing corrupt, wasteful, and invisible government. Our irresponsible legislature has proved as ingenious in evasions as our constitution makers have been in their limitations. Paper declarations having been largely ineffective, the time has come to try the experiment of open official leadership held to responsibility by a body of representatives who are not presumed to do the impossible-viz., to make intelligent plans about administration and to formulate budgets and administrative law for the execution of which they have no responsibility. Is it not time for the citizen to ask himself the question as to whether constitutions should not be based on the assumption that public opinion when informed and under responsible leadership may be trusted to impose the inhibitions required for good government?
The Constitution Should Contain Only the Great Underlying Principles of the Provisions for Government
Such a procedure would require a return, in one respect, to the early view that a constitution should contain a brief, clear statement of the principles which should control the reserved rights of the people and the organization and essential working relations of the parts of the govern
These principles should include in the organization the well-tried expedients which have been found most conducive to the establishment of responsibility and efficiency in government. By this alteration in the content of the constitution, the dignity of constitutional law could be restored and the organic principles of our government could be made so clear that any citizen could understand them. The sound practice of relying upon constant responsible leadership and informed public opinion would be substituted for reliance upon more or less ineffective paper declarations and resort to popular palliatives to curb the powers of the irresponsible boss. Representative government would be given the high place which it deserves, a new type of leader and legislator would be developed, and open-handed constructive politics substituted for the present political game of hide and seek which has resulted from the generally accepted doctrine that no one can be trusted in public office.
Three Expedients for Simplifying the Constitution
If, however, it is thought that the time has not arrived to abandon reliance upon safety devices which have not proved effective and that responsible representative government cannot be safely tried in the United States, there are three expedients which will go to the simplification of the government:
1. The separation of the temporary and private law provisions from the main body of the constitution, and the inclusion of temporary provisions in a schedule.
2. The separation of the minor from the fundamental provisions of the constitution and the establishment of an easier method of amending those clauses which are of less importance and most likely to call for change.
3. The correlation of administrative officers and departments with a view to prevent overlapping conflict and waste
The first of these expedients involves no radical departure from present practice and yet it would greatly simplify the main principles of the constitution and bring them out into bolder relief. For example, the temporary provisions dealing with the apportionment of assemblymen and senators occupied in the constitution of 1894 about half as much space as the entire body of the constitution of 1777. The removal of this material to a schedule adds a very desirable element of brevity.
Application of a More Difficult Amendment Process to the Fundamental Parts of the Constitution
The second of these expedients, namely, the adoption of an easy amending process for the minor and more temporary parts and a more difficult process for the more fundamental parts, is not unknown in the United States. As Dr. Dodd points out (Political Science Quarterly, June 1915, p. 219): "Several constitutions have, in fact, already made such a distinction, some by making important provisions more difficult of change, others by making easier the alteration of less important provisions." At all events, the present confusion of amendments covering important matters with amendments applying to minor matters-all mixed up together on a long ballot-prevents discriminating action on the part of the voters. On the same occasion voters are called upon to enact a fundamental provision dealing with the rights of persons and property, and are invited to express an opinion on how many judges should be elected in a part of the state with which they are wholly unfamiliar. Certainly nothing could add more to the muddle in which voters find themselves or prove more disastrous to the concentration of popular opinion on the grand matters of government.
The Form of the Constitution
The question of the form of the constitution, that is, the arrangement of the provisions, calls for only a brief treatment here. The volume which precedes is in fact a commentary on the proper division and classification of the clauses of the fundamental law. The reasons for the creation of separate parts or articles are in each case set forth in the critical appraisement and to repeat them here would be a work of supererogation. If the principles of responsible government as expounded above are accepted, then the respective parts of the constitution embodying them in law should be so organized as to set them forth with the greatest precision and clarity for the information of the citizens and the government. To accomplish this purpose the following divisions are suggested: Enacting clause
Declaration of rights reserved by the people
Electorate and electors
The departmental organization
Financial and other proprietary departments, boards, and
Civil departments rendering service to the public
Besides these it is suggested that the following provisions be eliminated from the continuing constitutional law as such:
Provisions of private and administrative law included in the constitution
Schedule (interim and temporary provisions)
The first of these should be separately submitted to the electorate for adoption or rejection with any provisions that are desired for making them more difficult of amendment than ordinary statutes.
For the purpose of illustration, the constitution of 1894, arranged on the basis of this classification, is included in the appendix which follows.