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even with the tendencies such as they now are, the state constitution still has a function distinct from that of statute. The constitution can never contain the great mass of general legislation of the state, and should deal with matters legislative in character only when, and in so far as, such matters are relatively more important. State constitutions contain and will continue to contain much of purely legislative detail, but such detail should, and is likely to, remain incidental to the main function of the constitution as an instrument organizing a state government and determining its powers. And even with the larger function of state constitutions, the constitution itself need not be materially lengthened. . . Many provisions in state constitutions have been inserted to meet conditions that no longer exist. Such provisions tend to persist, and the constitution lengthens by a process of cumulation. If constitution makers will winnow out provisions no longer desirable, they need not lengthen the constitution, even though at the same time they place in it many new provisions not properly fundamental in character.
of a Con
According to a well-known writer upon constitutional sub- 68. jects1 the essential elements of a written constitution such as Elements is found in the states of the Union are (1) a statement of the stitution. organization and functions of the political state, including the electorate, the public officials and the character of the laws, if any, to be enacted by the electorate; (2) the organization and functions of the government, (3) the restrictions upon the government, especially the Bill of Rights, and (4) the mode of amending the constitution. State fundamental law, however, includes much besides these essentials.2
Taking as a whole the constitutions as they exist today, the 69 The Typical typical one is found to contain about 22,000 words and may be Constitution. described as beginning with a preamble, the words of which are,
1Harry Pratt Judson, in Cyclopedia of American Government, I, 431, seq. See, also, his Essentials of a Written Constitution, Univ. of Chicago decennial publications, Vol. IV.
2Prof. Beard (op. cit., 447) classifies the contents of the state constitutions into six parts,-(1) bill of rights; (2) sections providing framework of government, central and local and the fundamental limitations of each branch; (3) sections dealing with state finances, principally to fix debt limits and prevent failure to meet obligations; (4) control of economic interests, such as railroads, insurance companies, banking and labor; (5) education and social welfare; (6) amending clause. Judge Cooley's classification (Constitutional Law, 385) is (1) description of the frame of government; (2) generally the qualifications upon the right of suffrage; (3) the usual checks and balances of republican government, recognizing the three separate departments; (4) some recognition of local self-government; (5) declaration of rights for the protection of individuals and minorities-general principles of republican government; fundamental rights of citizens; impartial trial and the protection of life, liberty and property.
3This is the average length.
We, the people of the State of
Next in order follow perhaps seventeen articles, subdivided into brief sections and entitled (1) a declaration of rights; (2) the distribution of the powers of government; (3) the legislative department; (4) the executive department; (5) the judicial department; (6) impeachment and removal from office; (7) suffrage and elections; (8) the militia; (9) finance and taxation; (10) state institutions and public works; (11) social rights; (12) education; (13) corporations; (14) cities; (15) counties; (16) miscellaneous, and (17) amending the constitution. Finally there is a schedule, prescribing how the constitution shall go into operation and relating the old order with the new.
The method of subdivision is itself interesting. In most of the constitutions the sections or minor parts are numbered with reference only to the article in which they are contained. Several of the newer ones, however, number their smallest subdivisions continuously from the beginning of the instrument, thus avoiding the necessity of naming the larger divisions in citations. Kentucky and Louisiana are divided into brief numbered paragraphs, with nothing resembling the articles of most of the constitutions. Several of the early constitutions have very complex arrangements of subject matter. That of Massachusetts, for instance, is contained in two parts, the latter of which is divided into chapters, sections and brief paragraph articles. Needless to say the headings of articles and other divisions form only the roughest sort of index to their actual contents.
Every constitution has its bill or declaration of rights, usuDeclarations ally forming its first article, though in a few instances to be of Rights.
This or a similar preamble, having as its leading thought that of gratitude for freedom and desire to perpetuate it is found in a majority of the constitutions. Occasionally the preamble is not placed at the beginning. That of Massachusetts is perhaps the most interesting (see also the opening words of Part II). Tenn. and Va. describe in their preambles the legal antecedents of their constitutional conventions. Vt. and W. Va. have no preambles.
"The average number of articles in the 43 constitutions having a fairly uniform method of subdivision.
"No such title is actually found in any constitution, but there exists a variety of articles on eminent domain, water rights, homestead exemptions (social welfare as opposed to enforcement of individual contract), etc., which may be so termed.
found second or even well toward the middle of the instrument. It has always been considered of prime importance and, indeed, several states divide their constitutions into two "parts," the bill of rights and the frame of government, while several others have somewhat similar classifications. In content the declarations of rights, while of like general purport, vary considerably in detail, as well as in number of provisions. Less than twenty sections may be regarded as exceptional; the upward limit is forty-five.
About half of the declarations begin by enumerating certain "inalienable rights," inherent in all persons. For example, the constitution of Pennsylvania" declares that
all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness;
and Wyoming,1 after asserting that,
in their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal,
provides that all laws
affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.2
Among the other rights regularly declared to exist is that of popular assembly for the purpose of instruction of representatives, petition for redress of grievance, or otherwise to consult for the common good. One state, however, cautiously adds that "secret political societies are dangerous to the liberties of a free people, and should not be tolerated."
The right to bear arms is usually asserted, but a number of states expressly stipulate that this shall not authorize the carrying of concealed weapons. The statement that
standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power
usually follows; and two states declare that the right to bear arms shall not authorize individuals or corporations to organize or employ an armed body of men. Persons conscientiously op posed to bearing arms are sometimes excused from doing so in time of peace, on condition, a few constitutions add, that they shall pay an equivalent.
The right of trial by jury is declared to be inviolate by a large majority of the states-in criminal cases in all of thembut various exceptions, for instance that it may be dispensed with in petty cases, that the common law provision for twelve men need not be followed or that unanimity is not necessary for reaching a verdict, are often found. Fourteen states require that in criminal cases the jury must be of the county or district in which the offence was committed. All of the constitutions provide for the writ of habeas corpus, subject, as a rule, to suspension when, in case of rebellion or invasion, the safety of the state may so require.
The right of all persons accused to be bailable by sufficient sureties is provided for almost invariably. Capital offences, "where the proof is evident and the presumption great" are excepted, but excessive bail must not be required, and "cruel and unusual" punishments are forbidden. As a rule accused persons cannot be tried except on indictment or presentment of a grand jury, but in more than a dozen states trial after information to the public prosecutor is also allowed.8
About half the bills of rights forbid banishment from the state or corruption of blood as a punishment for crime; several' add "whipping" to the prohibited list and most of the states also prohibit "unreasonable searches and seizures." Ex post facto laws are generally forbidden.
4New York is one of the states which does not contain the last clause. The failure of the 1915 convention to insert it was urged by former Chief Justice Cullen and others as a reason for the defeat of its proposals at the polls. "Wash., I, 24; Ariz., II, 26.
6e. g., Va., I, 8; Mich., V, 27; Ky., 248.
also, Vt., I, 10.
"Pa. requires that it be from the "vicinity"; Tenn. from the county.
se. g., Cal., I, 8.
e. g., Ga., I, 7.
Imprisonment for debt is frequently prohibited, though exceptions are common, especially in case of fraud on the part of the debtor.
About two-thirds of the states provide that the courts shall be open to all, that there shall be a remedy for any injury done a person and that justice shall be administered "without denial or delay."
The prohibition of hereditary privileges is still found frequently. One state, in a more modern spirit, provides "that no office shall be created, the appointment to which shall be for a longer time than during good behavior.”
Clauses protecting the inviolability of private property are always found. The famous expression that no person shall be deprived of life, liberty or property without due process of law2 occurs in a majority of the constitutions and the provision that private property shall not be taken without compensation is all but universal. More than three-fourths of the states forbid their legislatures to make any law impairing the obligation of a contract.3
The clause, born of pre-revolutionary days, that
no soldier shall in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, except in the manner prescribed by law,
continues in force in a majority of the states. Slavery and involuntary servitude, except as a punishment for crime, are forbidden in nearly half of them.*
Freedom in religious matters and freedom of speech and of the press are usually provided for, but the latter are limited. by responsibility for abuse and the former by a variety of restrictions especially in the older New England constitutions. Perhaps the most interesting as well as one of the longest of the clauses concerning religion is that of Washington:
1Ala., I, 29.
2"Law of the land" in other constitutions means the same thing as "due process of law."
In Mo. (II, 6) a person must be held liable upon a voluntary contract to attend or support a place of worship.
4Vt. (I, 1) has the unique provisions that no male over 21 or female over 18 ought to be holden by law to serve any person as slave unless bound by own consent after arriving at such age, or bound by law for payment of debts, damages, fines, costs or the like.
51, 11, amend. 4.