CHAPTER XL

CONSTITUTIONAL CHANGES IN THE STATES

THE Constitutions of the new States, which were formed out of the public domain during the two decades following the War of 1812, bear witness to the democratic tendencies of frontier communities. In contrast to the constitutions of the Revolutionary period, two tendencies appear: first, a disposition to remove all obstacles from the path of popular sovereignty; and secondly, a determination to strengthen and expand the executive at the expense of the legislative power. The reaction of Western democracy upon the older States led to similar changes in their constitutions. By the middle of the century a third tendency appears: to make the judiciary also dependent upon the popular will by election.

112. Veto Power of the Governor.1

In a free representative government there is a strong and natural tendency to excessive legislation. That department must be composed of a very numerous body of men. In general we may hope, that they will possess sound and upright intentions; but a majority of them will probably possess little experience in framing laws: and the nature of man, and our own experience shew, that men, suddenly elevated to power, have a natural proneness to use their power immoderately. Our state, in common with others, has from time to time had many bold and rude reformers; who see evils and disorders all around them, in whatever does not accord with their own narrow views of public policy; and who often apply remedies with so unskilful a hand, and with so little wisdom and circumspection, that in curing one evil, they create many others. Such an inexperienced lawgiver has his eye intently fixed on some particular mischief which he supposes to exist, and then, with a strong hand he extirpates that evil; but in doing so he often throws down the fences erected for the security of private rights. Almost every man who comes to the legislature seems to sup

1 Judge Platt in the New York Convention of 1821, Reports of Proceedings and Debates, 52-53.

pose that he is bound to do something; and this propensity is so strong, that it is often excited into a passion and a rage. All change in the public laws of the state is in itself an evil. It renders the rule of action for a time unknown or uncertain. The stability of laws inspires confidence; and the success of all our prospective plans in the various business of life must essentially depend on that stability. Fickle caprice is the law of a tyrant's will; and in proportion as our laws are unstable, they partake of that characteristic feature of tyranny.

Besides, sir, it is not to be disguised, that we are at all times exposed to the arts and designs of ambitious demagogues, to selfish intriguers, who speculate on the public bounty, through means of party favouritism; and to that esprit de corps, which under strong party excitement, often infests with contagious influence, all who are within its immediate atmosphere. The pride of our nature is often humbled, when we see men, who in their private life and character are deserving of all our confidence and esteem; yet, when associated in large assemblies, and inflamed with party zeal, are induced to commit intemperate acts of outrage and violence under the false pleas of public necessity, or of retaliation and self-defence - acts, of which any one of them, in a moment of calm reflection, would blush to think himself capable.

These, sir, are some of the infirmities and vices inherent in our form of government; and so long as man continues imperfect and depraved, these evils must ever attend the many blessings which we enjoy under our happy republic. But while this truth admonishes that perfection is unattainable in any human device; it solemnly warns us on this occasion, to retain or provide every suitable check and guard against those evils; so far as human sagacity and wisdom can discern and prevent them.

On this subject, sir, it is important to realize the distinction between the actual powers of legislation, and a mere negative veto. The power of making or altering the law ought unquestionably to be confided to the two houses of the legislature exclusively. That power expands itself to all objects not forbidden by the constitution, or the fundamental and universal

principles of justice. - Such vast powers are obviously liable to great abuse; and if abused, the injurious effects are permanent; and in a great measure incurable. If the legislature pass a law which is unconstitutional, the judicial tribunals, if the case be regularly presented to them, will declare it null and void. But in many cases, a long time elapses between the passing of the act, and the judicial interpretation of it; and what, let me ask, is the condition of the people during that interval? Who, in such a case, can safely regulate his conduct? In many cases a person is compelled to act in reference to such a statute, while he is necessarily involved in doubt as to its validity.

But where the legislature abuse their discretion, on questions of expediency merely, the mischief is often still worse. In all cases of private acts, which comprize three fourths of our statute book, the evil of an improvident act is incurable, because it usually vests private rights in individuals or corporations which no power under the government can afterwards repeal or annul. No matter how unequal, unwise, or inconvenient, such laws must be carried into effect. Fieri non debet; factum valet.

But in regard to the evils which might by possibility flow from the improper exercise of the qualified veto on the legislature, they are very limited in their effects, and of far less dangerous character. The council of revision, or the executive holding this check, can originate no bill, nor make nor alter any law. The effect of the objections where they prevail, can only produce the result of suspending the legislative will of the two houses. And the worst consequence which can ordinarily happen, is, that the people must remain under the law as it stood; until the voice of the people, through their new representatives, shall produce a change.

113. The Governor as "the Man of the People."1

I have long been sensible, in common with a large class of the community, that we have too much legislation. It renders

1 Ogden Edwards in the New York Convention of 1821, Reports of Proceedings and Debates, 60–61.

the law unstable, and it requires a good lawyer to keep pace with the construction it receives. All that the governor can say, when vested with the powers contemplated by the committee, is stay your hand. If gentlemen are afraid that we shall not have law enough, let them go to the lawyers' shelves and tables that groan beneath the burden. An erroneous idea seems to have prevailed in relation to the powers and origin of the governor. Who is he? and by whom is he appointed? Does he derive his authority from the king of Great Britain? Is he an usurper? If so, let us unite to depose him. But, sir, he is the man of the people-elected by their suffrage, and identified with their interests. He is a watchful sentinel to guard us from evil, and a zealous friend to admonish us of error. Much has been said respecting the necessity of keeping separate the different branches of the government. I yield a cordial acquiescence to the principle. But if we content ourselves with parchment regulations if nothing more effectual is done than to authorize the governor to recommend a reconsideration of the bills that are passed, it is easy to perceive that the weaker power will be trodden down by the stronger, and that the executive has become a cypher before the representatives of the people. On this, as on all other subjects, however, I have but one object in view. That object is to endeavour that the agents of the public are so guarded, checked, and controled, that the people may lie down and rest in security, with the consciousness that their rights will be protected.

114. Political Power of the Judiciary.1

The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can only pronounce a decision when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is, therefore, perfectly similar to that of the magistrates of other nations; and yet he is invested with immense political power.

1 De Tocqueville, Democracy in America (12th ed.), 1, 125-30.

How comes that about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact, that the Americans have acknowledged the right of the judges to found their decisions on the Constitution rather than on the laws. In other words, they have not permitted them to apply such laws as may appear to them to be unconstitutional. . .

Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence. In truth, few laws can escape the searching analysis of the judicial power for any length of time, for there are few which are not prejudicial to some private interest or other, and none which may not be brought before a court of justice by the choice of parties, or by the necessity of the case. But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. The alternative, then, is, that the people must alter the constitution, or the legislature must repeal the law. The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . .

Within these limits, the power vested in the American courts of justice, of pronouncing a statute to be unconstitutional, forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies.

115. Popular Election of the Judiciary.1

Now, sir, this question of electing judges by the people seems to have taken some gentlemen by surprise. I recollect 1 Debates and Proceedings of the Maryland Reform Convention (1851), 11, 461-64 passim.