Government in the United States, National, State and Local

Prohibitions.– It was thought wise, however, to prohibit both the national government and those of the states from doing certain things, and thus we find provisions in the Federal Constitution forbidding both governments from granting titles of nobility, from passing ex post facto laws, bills of attainder, etc. Likewise the states were prohibited from entering into treaties with foreign countries, from coining money, from impairing the obligation of contracts, and from passing laws on certain other subjects which it was clearly unwise to leave to state regulation.

Powers of the States.– The powers left to the states, unlike those conferred upon the national government, cannot be enumerated. They are so varied in character, and so extensive, that an attempt to enumerate them would involve cataloguing all the multitudinous business and social relationships of life. The powers of the national government seem much greater by comparison than those of the states, partly because they are set forth in the Constitution and partly because of their application throughout the entire country, but in reality they are not only far less numerous but affect less vitally the great mass of the people. The powers of the states include such matters as the regulation of the ownership, use, and disposition of property; the conduct of business and industry; the making and enforcing of contracts; the conduct of religious worship; education; marriage, divorce, and the domestic relations generally; suffrage and elections; and the making and enforcement of the criminal law. In the division of governmental powers between the nation and the state, says Bryce, the state gets the most and the nation the highest, and so the balance between the two is preserved.

"An American," says Mr. Bryce, "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 post office, and opens his trunks for a customhouse 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."

Rights and Privileges of the States as Members of the Union.– The states have certain rights and privileges which are guaranteed them by the Federal Constitution, and of which they cannot be deprived by the national government without their consent.

Republican Government.– Thus it is made the duty of the United States to guarantee to every state in the union a republican form of government, that is, a government by the chosen representatives of the people of the state. In a few cases rival governments have been set up in a state, each claiming to be the legitimate government and entitled to the obedience of the people; the one recognized by the federal authorities has always prevailed.

Protection Against Invasion.– It is also made the duty of the national government to protect the states against invasion. This is right and proper, since the states are forbidden by the Constitution to keep ships of war or troops in times of peace.

Protection Against Domestic Violence.– Again, it is made the duty of the national government to protect the people of the states against domestic violence arising from insurrection or riots, provided that application has been made by the proper state authorities. The purpose of this proviso is to remove the temptation to federal interference in state affairs for political or other reasons against the wishes of the people of the state. The ordinary procedure for the suppression of a local disturbance is for the sheriff of the county, or the mayor of the city, to make use of the local police, and if necessary he may call upon the citizens to come to his aid. If this is not effective, the governor may be called upon to order out the state militia for the suppression of the riot. If, however, the riot should spread and assume such proportions that the power of the state and local authorities is insufficient, it becomes the right and duty of the governor, or the legislature if it be in session, to call on the President of the United States for the assistance of national troops. If in the President's judgment the situation is one which warrants federal intervention, he sends a detachment of troops from a near-by military post to restore order. Many times in our history federal troops have been used to put down riots where the state authorities had shown themselves incapable of maintaining order; two recent examples being in connection with strikes among the miners of Nevada in 1907, and of Colorado in 1914.

Ordinarily the President has no lawful right to interpose in the affairs of the state by the employment of troops until he has received an application from the governor or the legislature, but if the disturbance is one which interferes with the operations of the national government or with the movement of interstate commerce, the President may intervene whenever in his opinion the situation calls for federal action. Thus during the Chicago strike riots of 1894, President Cleveland ordered a detachment of federal troops to that city against the protests of the governor, upon being assured that the strikers were interfering with the movement of the mails and with the conduct of interstate commerce and were also disregarding the writs and processes of the United States courts. The interference of the President was criticized by some persons, but the great body of citizens approved his course, and the United States Supreme Court upheld the validity of his action.

Other Rights of the States.– Among the other rights of the states under the Federal Constitution may be mentioned the right of equal representation in the senate, a right of which no state can be deprived without its consent, and the right of territorial integrity: no new state may be created within the jurisdiction of another state, nor may any state be formed by the junction of two or more states or parts of states, without the consent of the states concerned.

Obligations and Duties of the States.– Rights and privileges usually imply obligations, and so we find that the states owe certain duties to one another and to the union of which they are a part, and the harmony and success of the federal system are dependent in a large measure upon the performance of these duties in good faith.

Full Faith and Credit.– First of all, each state must give full faith and credit to the acts, judicial proceedings, and records of the other states. This means, for example, that a properly authenticated copy of a will or deed duly executed in one state will be taken notice of and rights depending on it will be enforced in other states as though the instrument were made therein. Likewise, a marriage legally celebrated in one state will usually be treated as valid in another state, and the facts of a case at law will be recognized in other states without the necessity of retrial. The provision as to full faith and credit does not mean that one state must enforce within its borders the laws of other states, or that its courts in reaching their decisions are bound by the decisions of the courts of its sister states. As a matter of practice, however, courts in one state in deciding difficult questions of law will examine the decisions of the courts of other states on similar points for their own enlightenment, and will show respect for these decisions, the degree of deference depending on the standing of the judges rendering the decision and upon the similarity of the laws and policies of the states concerned.

Surrender of Fugitives from Justice.– In the next place, it is made the constitutional duty of the executive of each state to surrender criminals escaping from other states, in order that they may be returned for trial and punishment in the state from which they have fled. The demand for the surrender of such fugitives is made by the governor of the state from which the criminal has fled, and the governor upon whom the demand is made ought to comply with it unless for very substantial reasons. There is no way, however, by which this obligation may be enforced, and there have been many cases where governors have refused to deliver up criminals escaping from other states – usually for the reason that, in the governor's opinion, the fugitive would not receive a fair trial in the state from which he had fled.

Treatment of Citizens of Other States.– Still another obligation imposed by the Federal Constitution on the states is that of treating the citizens of other states as they treat their own citizens, i. e., without discrimination. But this obligation has reference rather to civil rights than to political privileges. It does not mean that an illiterate man who is allowed to vote in Illinois may go to Massachusetts and vote where an educational qualification for the suffrage is required; nor does it mean that a woman who is allowed to practice law in one state may therefore practice in another state which excludes women from engaging in that profession. What the provision does mean, is that whatever privileges and immunities a state allows to its own citizens, it must allow the citizens of other states on the same terms, and subject to the same conditions and no more. Thus a state cannot subject the citizens of other states to higher taxes than are imposed upon its own citizens.

Other Obligations.– Finally, it goes without saying that it is the duty of each state to treat its sister states in the spirit of comity and courtesy; to carry out the mandates of the Federal Constitution relating to the election of senators, representatives, and presidential electors so as to keep up the existence of the national government; and, in general, to perform in good faith all their other obligations as members of the union, without the performance of which the republic would be a mere makeshift. The existence of the states is essential to the union, and their preservation is as much within the care of the Constitution as is the union itself. Indeed, the Constitution in all its parts, said the Supreme Court of the United States in a famous case, looks to an indestructible union of indestructible states.

The State Constitution; how Framed.– The governmental organization of each of the states is set forth in a written instrument called a constitution. Unlike the constitutions of some of the European states, which were granted by kings, and unlike, also, those of the British self-governing colonies, which were enacted by Parliament, all the American constitutions now in existence were framed by constituent bodies representing the people, and in most cases they were approved by the people before they went into effect. As Mr. Bryce has remarked, the American state constitutions are the oldest things in the political history of America. Before the Federal Constitution was framed each of the thirteen original states had a constitution of its own, most of them being framed by popular conventions chosen especially for the purpose.

Later, when a territory asked to be admitted to the union as a new state, Congress, through what is called an "enabling act," empowered the people of the territory to choose a convention to frame a constitution which, when submitted to the voters and approved by them, became the fundamental law of the new state. In a number of cases, however, the people of the territory went ahead on their own initiative, and without the authority of an enabling act framed their constitution and asked to be admitted, and sometimes they were admitted as though they had acted under the authority of Congress. Whenever an existing state wishes to frame a new constitution for itself, the usual mode of procedure is for the legislature either to pass a resolution calling a convention, or to submit to the voters the question of the desirability of a new constitution. A resolution calling a convention usually requires an extraordinary majority of both houses of the legislature, two thirds of the members being the most common rule.

Ratification of New Constitutions.– When the draft of the constitution has been completed by the convention, it is usually submitted to the voters of the state at a general or a special election, and if it is approved by a majority of those voting on the constitution, or (in some states) of those voting at the election, it supersedes the old constitution and goes into effect on a day prescribed. In some instances, however, new constitutions were not submitted to popular vote; instead, the convention assumed the right to put them into effect without popular approval. Of the twenty-five state constitutions adopted before the year 1801, only three were submitted to the voters for their approval, but as time passed the practice of giving the people an opportunity to approve or reject proposed constitutions became the rule. In the twenty years between 1890 and 1910 eight new constitutions were submitted to the people, and only five were put into force without popular ratification, namely, those of Mississippi (1890), South Carolina (1895), Delaware (1897), Louisiana (1898), and Virginia (1902).

Frequency of New Constitutions.– The frequency with which the states revise their constitutions varies in different sections of the country. In New England new constitutions are rare, while in the states of the West and the South new constitutions are framed, on an average, at least once in every generation and sometimes oftener. Since the Revolution more than two hundred constitutions have been made by the states, though some of them never went into operation. Several of the states within a period of less than one hundred years have had as many as six, and a few have had even more. The constitution of Massachusetts of 1780, with several subsequent amendments, is still in force; but outside of New England there are few constitutions that are more than thirty years old. Some of the states, indeed, have inserted provisions in their constitutions making it the duty of the legislature at stated intervals to submit to the voters the question of calling a convention to revise the existing constitution or to adopt an entirely new one. In this way the people are given an opportunity to determine whether the constitution under which they live shall be revised or superseded by a new one, independently of the will of the legislature.

Contents of State Constitutions.– The early state constitutions were brief documents and dealt only with important matters of a fundamental and permanent character. They were remarkably free from detail and rarely contained more than 5,000 words. As time passed, however, there was an increasing tendency to incorporate in them provisions in regard to many matters that had formerly been left to the legislature to be regulated by statute, so that some of the constitutions of the present day are bulky codes containing detailed provisions concerning many matters that might more properly be dealt with by statute. The constitution of Virginia, for example, has expanded from a document of a few pages to one of seventy-five, from an instrument of about 1,500 words to one of more than 30,000. The present constitution of Alabama contains about 33,000 words; that of Louisiana, about 45,000; and that of Oklahoma, about 50,000. The Virginia constitution contains a lengthy article on the organization of counties; one on the government of cities, constituting a code almost as elaborate as a municipal corporations act; one on agriculture and immigration; one on corporations, containing fourteen sections; one on taxation and finance, etc. The constitution of Oklahoma contains an article of seven sections on federal relations, one of which deals with the liquor traffic; elaborate provisions regarding the referendum and initiative; a section describing the seal of the state; a detailed enumeration of those who are permitted to accept railroad passes; an article on insurance; one on manufactures and commerce; and one on alien and corporate ownership of lands.

Parts of a Constitution.– A typical constitution consists of several parts: (1) a preamble; (2) a bill of rights; (3) a series of provisions relating to the organization of the government and the powers and duties of the several departments; (4) a number of miscellaneous articles dealing with such matters as finance, revenue and debts, suffrage and elections, public education, local government, railroads, banks, and other corporations generally; (5) an article describing the procedure by which amendments may be proposed and ratified; and (6) a schedule. Many constitutions contain an article defining the boundaries of the state, and most of them one on the distribution of the powers of government. Some of the newer constitutions also prescribe numerous limitations upon the legislature, so great is the popular mistrust of legislatures to-day; while others lay down various rules as to the procedure of the legislature. The schedule contains provisions for submitting the constitution to the voters and making necessary arrangements for putting the new constitution into effect.

The Bill of Rights, says Bryce, is historically the most interesting part of the state constitution, and if we may judge by the space devoted to these provisions and the attention paid to their framing, they constitute a very important part of the constitution. In a sense they are the lineal descendants of great English enactments like Magna Charta, the Bill of Rights, and the Act of Settlement, and of the various declarations of the Revolutionary Congresses in America. They consist of limitations upon the government and of statements of the fundamental rights of man.

Some Provisions of the Bills of Rights.– Examining these bills of rights, we find that they all contain declarations in favor of freedom of religious worship, freedom of assembly, freedom of speech and of the press, and most of them forbid the establishment of a state church or the appropriation of money for the establishment or support of any religious denomination. Most of them contain declarations providing for trial by jury in criminal cases, indictments by grand jury, the privilege of the writ of habeas corpus, the right of the accused to a speedy and public trial; a declaration of the right of citizens to bear arms; the prohibition of excessive bail, cruel and unusual punishments, general search warrants, and imprisonment for debt; the prohibition of titles of nobility, ex post facto laws, and bills of attainder9; and provisions forbidding the taking of private property except for public purposes and then only when just compensation is made.10 Many of them contain philosophical enunciations of political doctrines such as the assertion that all governments originate with the people, and are instituted solely for their good; that all men are equal; that all power is inherent in the people; and that the people have at all times the right to alter, reform, or abolish their government. Some of the newer constitutions declare that monopolies and perpetuities are contrary to the principles of free government; that every citizen shall be free to obtain employment wherever possible; that a long lease of office is dangerous to the liberties of the people; that aliens shall have the same rights of property as citizens; and so on.

The real importance of the bills of rights, now that executive tyranny is a thing of the past, is not very great.

Amendment of State Constitutions.– The practice of inserting in the constitution many provisions which are temporary in character, makes frequent alteration a necessity if the constitution is to meet the rapidly changing needs and conditions of the state. Some of the early constitutions contained no express provision for their own amendment, but as time passed changes became manifestly necessary, and in time they were all amended or supplanted entirely by new ones, notwithstanding the absence of amending provisions. Ultimately the advantage of pointing out in the constitution a legal and orderly way of amendment came to be generally appreciated, and at the present time all of the constitutions contain amending provisions. These clauses provide that amendments may be proposed, either by a convention called by the legislature, or by the legislature itself, usually by an extraordinary majority; in either case the proposed amendment must be submitted to the voters for their approval, and it becomes a part of the constitution only if ratified by a majority of those voting on the proposed amendment or, in some states, by a majority of those voting at the election at which the proposed amendment is submitted. A new method of amendment by popular initiative was adopted in Oregon in 1902. According to this method a proposed amendment may be framed by the people by petition and submitted to a popular vote without the necessity of the intervention of the legislature in any form.

In spite of the restrictions imposed, most of the constitutions are frequently amended. During the two decades from 1900 to 1919, 1500 amendments were proposed by the legislatures of the several states, or by popular initiative, and of these about 900 were ratified. At the general election of 1918, no less than 130 amendments were voted on by the people of the different states, and a number of others were awaiting the action of the legislatures soon to meet. In five western states alone 270 amendments were submitted from 1914 to 1919.

References.– Beard, American Government and Politics, chs. xxii-xxiii. Bryce, The American Commonwealth (abridged edition), chs. xxxiv-xxxv. Dealey, Our State Constitutions, chs. ii-iii. Hart, Actual Government, ch. vi. Hinsdale, The American Government, chs. xl, xli, xlix, l. Wilson, The State, secs. 1087-1095. Willoughby, Rights and Duties of Citizenship, ch. x. Willoughby, The American Constitutional System, chs. ii-x.

Documentary and Illustrative Material.– 1. Thorpe's Constitutions and Organic Laws, or Poore's Charters and Constitutions, both published by the Government Printing Office. 2. Pamphlet copies of state constitutions can usually be obtained from the secretaries of state of the various states. 3. The legislative manual of the state, where usually a review of the constitutional history of the state may be found.

Research Questions

1. In what two senses is the word "state" used? In what sense is New York a state and in what sense is it not?

2. Were the states ever sovereign? What were the two views in this country prior to the Civil War in regard to the sovereignty of the states?

3. The constitution and laws of the United States are declared to be supreme over those of the states; what is the meaning of that provision? Does that mean that any law passed by Congress will override a conflicting law passed by a state, even though the law passed by the state is clearly within its powers?

4. Distinguish between reserved powers and delegated powers.

5. Do you believe the powers of the national government should be increased so as to include the regulation of such matters as marriage and divorce, the business of corporations, factory labor, and insurance?

6. What is the purpose of the commissions on uniform legislation in the different states, and what are they seeking to accomplish? Is there such a commission in your state?

7. Which of the following matters fall within the jurisdiction of the United States and which within the jurisdiction of the states? (1) the levying of tariff duties, (2) the transfer of land, (3) the building of lighthouses, (4) the protection of religious worship, (5) the granting of passports, (6) punishment of crime, (7) the granting of pensions, (8) the regulation of labor in mines and factories, (9) the protection of the public health, (10) the support of schools, (11) the regulation of navigation, (12) the erection of fortifications.