officers are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance; and I can not but believe that more is lost by the long continuance of men in office than is generally to be gained from their experience." Under the stimulus of this idea, it became an accepted practice to make the terms of state and local officers short and to "rotate" the positions among political workers in accordance with the methods of the spoils system. Before the nineteenth century had drawn to a close, however, the doctrine, as applied to appointive positions, had been challenged by the civil service reformers; in ten states and many cities efforts are being made to promote efficient government by giving permanence of tenure especially to those officials who have little or nothing to do with matters of policy.1

Popular Law-making

None of the experience with state politics, however, has dampened in the least the faith of the American people in their capacity to govern themselves. On the contrary, while widening the suffrage and limiting the authority of elected persons, they have entrusted more and more work to the voters at the polls. The first departure from the pure representative principle was made in the reference of constitutions to the electors for their judgment. As we have seen, the idea of popular ratification was not generally accepted in the beginning; only three of the constitutions drafted between 1776 and the end of the eighteenth century were laid before the voters for their approval. Very slowly did constitution-makers come to the conclusion that they should submit their handiwork to the people. New York took the step in 1821; the constitution of that year was laid before the voters and in the instrument itself was a clause to the effect that all future amendments must have popular approval before going into force. By the middle of the century the doctrine of constitutional referendum was firmly established and only a few constitutions since that time have been proclaimed without popular sanction. The exceptions have been in the South where special reasons intervened.

In was by a gradual process that the constitution-makers

1 Below, p. 589.

arrived at a complete and elaborate system for proposing and ratifying changes in existing constitutions. That process, according to Professor Garner,1 fell into four stages: (1) during the first half of the nineteenth century the method of amendment by convention, subject to popular ratification, was fairly well developed; (2) immediately preceding and following the Civil War the more simple method of alteration through legislative enactment and approval by the voters was widely adopted; (3) between the Civil War and the end of the century the combination of periodical conventions and legislative enactment with popular sanction was worked out in detail; and (4) at the opening of the twentieth century, there appeared the still more democratic system for making amendments as well as laws by popular initiative subject to a popular referendum.2

Along with changes in the organization of state governments have gone equally significant changes in the functions of those governments. The state constitutions reflect the principal legal adjustments made necessary by the social and industrial development of the country. In fact they are almost meaningless to anyone not acquainted with the course of our economic evolution. The recent constitutions make elaborate provisions for the control of railway and other corporations; they contain sections in behalf of labor; they provide in more or less detail for popular education; they take into account the special legal problems created by the rise of the great cities. Several of them specifically recognize the changed position of women in modern society by abrogating the old English legal doctrines in accordance with which her personality was merged in that of her husband while her property passed into his possession or control. Some expressly provide that women may acquire and possess property of all kinds separate and apart from their husbands and abolish all distinctions between men and women with regard to the right to acquire, enjoy, and dispose of property and make contracts in reference thereto. A few of the newer constitutions also contain special provisions with respect to the employment of women in industries.

Striking as are the changes in our state constitutions during the past hundred and fifty years, they by no means embrace all the significant developments in state government. In the course of 1 Political Science Review, February, 1907.

2 See below, p. 505.

time, the distinction between constitutional and statutory law has almost disappeared. The former is no longer confined to a statement of broad principles relative to the organization and powers of government; it breaks into the most minute matters, state and local. Although limited by innumerable restraints, the state legislature still possesses large powers over affairs of fundamental importance and many of its statutes deal with subjects as significant as the topics covered by state constitutions. Moreover, as in the case of the National Government, political practices have given a wholly new direction to the operation of state governments and the distribution of forces within them. So we must be on our guard against the assumption that the history of our states can be written largely in the terms of constitutional development; but if we should venture into the wider field we should soon be far beyond the limits imposed upon these pages by necessity.

CHAPTER XXIII

THE CONSTITUTIONAL BASIS OF STATE GOVERNMENT

There was a time in our history when the constitutional foundation of the state seemed firm and definite, anchored in the affections of the people and guarded by positive principles. The state government, based upon its own fundamental law and secure in its "reserved rights" under the federal Constitution, occupied a position that seemed impregnable. Hamilton, often discouraged by the evident weakness of the National Government, lamented that in every contest with the states it would come out second best; though, as Talleyrand said, he divined Europe, he could not foresee the future in America. Jefferson, on the other hand, rejoiced in the seeming supremacy of the states; he regarded the National Government mainly as an agent of the states charged with conducting their foreign affairs. John Jay, when tendered a reappointment to the high office of Chief Justice of the Supreme Court by President Adams, declined the honor; he preferred to be governor of the state of New York. Not long afterward, De Witt Clinton esteemed so lightly the post of United States Senator that he surrendered it to become mayor of New York City.

When Bryce made his famous survey of the American Commonwealth nearly a hundred years later, he was struck with the supremacy of the state in domestic concerns and the remoteness of the Federal Government from the life of the citizen. "An American," he said, "may, through a long life, never be reminded of the Federal Government except when he votes at presidential and congressional elections, buys a package of tobacco bearing the government stamp, lodges a complaint against the postoffice, and opens his trunks for a custom house officer on the pier at New York when he returns from a tour in Europe. His direct taxes are paid to officials acting under state laws. The state or local authority constituted by state statutes registers his birth, appoints his guardian, pays for his schooling, gives him a share

in the estate of his father deceased, licenses him when he enters a trade (if it be one needing a license), marries him, divorces him, entertains civil actions against him, declares him a bankrupt, hangs him for murder; the police that guard his house, the local boards which look after the poor, control highways, impose water rates, manage schools - all these derive their legal powers from his state alone."

The Changing Position of the State in National Life

Obviously fundamental changes have occurred in our federal system since John Jay declined the post of Chief Justice; even Bryce's emphasis is no longer correctly placed. Some of these changes have been effected by constitutional amendment. Slavery, once left entirely to the discretion of the state, was abolished by the Thirteenth Amendment. The Sixteenth Amendment authorizes the National Government to enter the economy of the state and lay income taxes directly upon its citizens without reference to its population. The Seventeenth commands the state to elect its Senators by popular vote and thus deprives Senators of the ambassadorial character which they once enjoyed. The Eighteenth strikes the cup of intoxicating liquor from the hands of the citizen; it brings the federal officers down upon him if he attempts unlawful manufacture and sale. The Nineteenth limits the right of the state to decide who shall vote for its officers and agents by making woman suffrage national in its sweep.

Perhaps the most radical of all constitutional changes1 has been effected by the Fourteenth Amendment which brings within the jurisdiction of the federal courts every act of every state and local authority, which touches vitally the liberty and property of citizens and corporations. It has been held by those courts "that state boards and commissions, attorneys-general and prosecuting attorneys may be enjoined from putting into effect a schedule of railroad rates, or gas, telegraph, or stockyard rates, alleged to be invalid as working a deprivation of property without due process of law or otherwise violating the federal Constitution. State officers have been restrained from levying taxes on the ground that they were attempting to act without lawful authority. A cancellation or revocation of license to do corporate

1 See above, chapter xx, for changes effected by federal legislation.