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legislative, executive, and judicial, are the creatures of, and subject to, the State Constitution. Just as the President and Congress are placed beneath the Federal Constitution, so the Governor and Houses of a State are subject to its Constitution, and any act of theirs done either in contravention of its provisions, or in excess of the powers it confers on them, is absolutely void. All that has been said in preceding chapters regarding the functions of the courts of law where an Act of Congress is alleged to be inconsistent with the Federal Constitution, applies equally where a statute passed by a State legislature is alleged to transgress the Constitution of the State, and of course such validity may be contested in any court, whether a State court or a Federal court, because the question is an ordinary question of law, and is to be solved by determining whether or not a law of inferior authority is inconsistent with the law of superior authority. Whenever in any legal proceeding before any tribunal, either party relies on a State statute, and the other party alleges that this statute is ultra vires of the State legislature, and therefore void, the tribunal must determine the question just as it would determine whether a by-law made by a municipal council or a railway company was in excess of the law-making power which the municipality or the company had received from the higher authority which incorporated it and gave it such legislative power as it possesses. But although Federal courts are fully competent to entertain a question arising on the construction of a State Constitution, their practice is to follow the precedent set by any decision of a court of the State in question, just as they would follow the decision of a French court in determining a point of French law. Each State must be assumed to know its own law better than a stranger can; and the supreme court of a State is held to be the authorized exponent of the mind of the people who enacted its Constitution.
A State Constitution is really nothing but a law made directly by the people voting at the polls upon a draft submitted to them. The people when they so vote act as a primary and constituent assembly, just as if they were all summoned to meet in one place like the folkmoots of our Teutonic forefathers. It is only their numbers that prevent them from so meeting in one place, and oblige the vote to be taken at a variety of polling places. Hence the enactment of a Constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republics of antiquity, and has lasted till now in some of the cantons of Switzerland. Bryce, op. cit., p. 435.
5 The Bill 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 attainder; and provisions forbidding the taking of private property except for public purposes and then only when just compensation is made. 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 bill of rights, now that executive tyranny is a thing of the past, is not very great, but they are nevertheless interesting as formulations of American ideas of government and liberty.-J. W. Garner, Government in the United States," p. 68.
6 The Constitutional Referendum.- Mr. Samuel E. Moffett, after discussing the constitutional referendum in California from 1884 to 1896, is much more enthusiastic in his conclusions: He says: “The suspicious vigilance of the people never tolerates anything that appears to cover a 'job'. Repeated efforts have been made to increase the pay and privileges of members of the legislature and other public servants, but always without success. The Southern Pacific Company, which always controls the legislature when it seems to be worth while, undertook in 1885 to secure a change in the methods of taxation, by which it would be taxed on its income instead of on its property. There was no trouble in getting a two-thirds vote of each house of the legislature in favor of the necessary amendment; but when the measure came before the people, only 9,992 citizens, or just about the number of the employees of the corporation, voted in its favor, while 123,173 voted against it. . . . Impatient reformers become disheartened because everything is not accomplished at once, but no general election passes, without the correction of some abuse in government or the achievement of some positive advance. When the harness chafes long enough at any particular point to make the annoyance seriously felt, the people alter it until it is comfortable; and as no good piece of work of this sort is ever undone, the ultimate achievement of a perfect fit is only a question of time.”
Governor Hughes in his annual message to the legislature of New York on January 5, 1910, said: “Our experience at the last election with regard to the constitutional amendments submitted for adoption shows a lamentable lack of sense of responsibility on the part of our citizens with respect to changes in the fundamental law.” A somewhat similar statement was made by Governor Gage of California in his message to the legislature of that state in 1903. “Constitutional amendments are easily passed at each session of the legislature, for, unlike laws, the governor has neither the power of approval or disapproval. When passed by resolution of the senate and assembly and submitted to the people, comparatively few voters really understand the character and purpose of these amendments, when appearing by title and number on the ballot; hence, as a rule, the electors vote on them in a very perfunctory manner.” The supreme court of Colorado in People v. Sours said: “It is hard to account for the apparent indifference of the people on the occasion of submission to them of changes in their organic law. The indifference which prevails in Colorado prevails in other states, and it rarely occurs that a proposed amendment to the constitution receives the attention of more than one-half of those who vote for candidates for office.” Similar statements may be made with reference to almost all of the states in which frequent use is made of the amending procedure.-W. I. Dodd, “The Revision and Amendment of State Constitutions,” pp. 286, 287.
7 Admission of New States. The federal Constitution contains no details as to the way in which a new state may be admitted to the Union. It simply provides that new states may be admitted by Congress, and that no new state shall be formed out of another state or by the junction of two or more parts of different states without the consent of the legislatures concerned and Congress as well. A variety of methods have been employed in the admission of new states. Texas, for example, was admitted to the Union in 1845 as an independent republic by resolution of Congress; and California never went through the territorial stage. The inhabitants of that region shortly after the cession from Mexico drew up a constitution, demanded admission to the Union, and Congress yielded.
The only constitutional question of any importance which has arisen in connection with the admission of new states is whether Congress has the power to impose on a commonwealth coming into the Union any limitations in addition to those laid down in the federal constitution. It is the theory that all the states in the Union are equal in rights and privileges. The famous Northwest Ordinance of 1787, continued by Congress in 1789, declared that the new states created in that region should be admitted “on an equal footing with the original states in all respects whatever." On the admission of Ohio in 1802, however, Congress forced that state to agree not to tax for a period of five years any public lands sold within its borders by the United States. The enabling act for Nevada, passed in 1864, while declaring that the state should be admitted into the Union“ upon an equal footing with