Historical background

William M. Wiecek; Wiecek, William M.

1 Historical background

Why teach and learn California Constitutional Law?

Joseph R. Grodin, In Pursuit of Justice

Joseph R. Grodin, In Pursuit of Justice: Reflections of a State Supreme Court Justice
(1989)

State Constitutions

In downtown Monterey, California, within walking distance of Fisherman’s Wharf, stands a spacious building of yellow sandstone called Colton Hall. The first floor housed one of California’s first public schools. On the second floor is a room, about sixty feet long and twenty-five feet wide, with a railing across the middle and four long tables. It is not a particularly imposing setting, but here, in September 1849, California history was made.

On the first day of that month delegates from various parts of what was soon to become the thirty-ninth state of the Union came together in that room in response to a call for a constitutional convention. It was a tumultuous period in California. People were coming by the thousands in search of fortune, fame, freedom or whatever it is that inspires adventuresome people to pick up their belongings and try their luck in a new and strange land. There was no generally applicable law, no centralized government, nothing but an accumulation of small and isolated communities stretching from burgeoning San Francisco in the north to the pueblo of Los Angeles in the south from the coast to the foothills where it was said there was still much gold to be found. Authority, to the extent it existed at all, resided in a de facto military government and in makeshift local arrangements, largely of the vigilante variety. It was apparent to everyone who thought about such things that there needed to be some orderly governance, but the Congress of the United States, anxious about having to confront the slavery issue in a new territory, was sitting on its hands.

It was Brigadier General Bennett Riley, the de facto military governor, who was responsible for the remarkable gathering in Monterey. He had issued the call for a constitutional convention, decreeing that delegates should be chosen at grass-roots meetings in the mining camps and communities throughout the land. To many observers such a convention seemed an unlikely prospect, but almost at the last minute it actually happened. And there they were, arriving by boat, carriage, and horseback, ready to participate in a process that was to provide the legal structure for California’s participation in the Union.

They must have been a strange-looking group; they were certainly diverse. Some had lived in California all their lives – these were the “Californios,” the Spaniards, with names like Valleo, De la Guerra, Carillo, and Covarrubias. Most of them, however, were newcomers – miners, lawyers, physicians, farmers, businessmen, trackers—who had come to California from the East Coast or, like John Sutter and William Shannon, from places as far away as Switzerland and Ireland. The oldest among them was fifty-three, the youngest twenty-five; the average age was thirty-six.

A historian of the event, Rockwell Hunt, was to observe, “It may be doubted if the members of any previous convention in the United States, with similar purpose, even came together so totally unacquainted with each other and so entirely wanting in general concert of plans of policies of action.” No doubt that is true. But one cannot read the record of their proceedings without being impressed with their dedication and their intelligence. Some delegates had considerable experience with political matters in other states; one delegate, William M. Gwin, had served in Congress and at another state constitutional convention. Most did not have that kind of experience, but all of them took their job seriously, and they put together a document that served the new state quite well for thirty years, when a second constitutional convention was held and substantial changes were made.

One part of the 1849 constitution that was not changed in any significant respect was article 1, called the Declaration of Rights. Article 1 was in fact the first item of business at the Monterey convention after the seating of delegates. It was the product of a drafting committee, and it consists of sixteen sections. Gwin, a spokesman for the committee, reported that half the sections came from the constitution of New York and half from the constitution of Iowa. Copies of the draft were distributed to the delegates. One delegate requested an adjournment for two reason: first, so that copies of additional state constitutions could be located and brought to the convention room, and second, so that the draft could be translated into Spanish for the benefit of the native Californians (a bit of historical irony, perhaps, in light of the initiative adopted in California in 1986 declaring piously that English is the official language of the state). Gwin explained that translations had already been made, but the convention was nevertheless adjourned until the following day.

After several days of discussion in committee, the delegates as w hole proceeded to consider one by one the sections of the Declaration of Rights. Mr. Botts, and immigrant from Virginia, rose to question some language in section 3 pertaining to freedom of religious practices and worship. The language he objected to was a proviso that ‘The liberty of conscience hereby secured, shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.” What is the meaning of that language? Mr. Botts inquired. Would it authorize the legislature to outlaw the Roman Catholic church? Why not, he suggested, use “the most eloquent and beautiful” language on freedom of worship from the constitution of Virginia?

Mr. Sherwood, from New York, rose in replay. The gentleman from Virginia, he opined, was evidently not acquainted with the history of the new religious sects in the state of New York, or he would see the propriety of the restrictions contained in the proposed language. “There have been sects known there to discard all decency,” warned the proper Mr. Sherwood, “and admit spiritual wives, where men and women have herded together, without any regard for the established usages of society.” The restrictive language was deemed necessary, he concluded, “that society should be protected from the demoralizing influence of fanatical sects, who thought proper to discard all pretensions to decency.” The proposed language was adopted over Mr. Bott’s objection.

Among the delegates was a Mr. Hastings, a lawyer of sorts who also held himself out as a guide to overland routes. His qualifications in that regard may be suspect—historians of the period say he was more of a promoter, and the fact that his book on emigrant routes was relied on by the ill-fated Donner party is scarcely a recommendation – but he was a thoughtful man nonetheless, and he came forward with what must have seemed a rather startling proposal. He suggested that the committee draft be amended to outlaw capital punishment on the ground that it is as immoral for the state to take a human life as it is for an individual to do so. After what appears to have been some polite, if condescending, discussion, the amendment was defeated. The report of the proceedings does not record the vote.

And so it went. In the end the committee draft was adopted with only minor changes except for one – the addition of a provisions prohibiting slavery. Some of the draft provisions received a good deal of discussion, some (at least so far as appears from the report of the proceedings) none at all. Nevertheless, for the reader interested in the relationship between state constitutions and the federal Constitution, the debate vividly illustrates two important lessons.

The first lesson is that the language of article 1 of the California constitution was deliberately drawn from the constitutions of other states, not from the United States Constitution. Despite the frequent use of language similar, and indeed in some cases identical, to that of the federal Constitution as their model. The constitution of New York, which formed the basis for roughly half the language of article 1, was adopted before the federal constitutional convention in Philadelphia. The constitution of Iowa, adopted of course after the federal convention, was an equally independent document.

The second lesson is that just as the framers of the California constitution where not looking to the federal Constitution as a model for language, neither were they looking to it as a legal basis for protecting rights and liberties from interference by the new state. At that time the federal Bill of Rights applied only to action by the federal government. It would be another twenty years before the Fourteenth Amendment would be added to the federal Constitution in order to provide protection against certain state action, and another sixty years after that before the United States Supreme Court would recognize the due process guaranty of the Fourteenth Amendment as incorporating most of the protections of the Bill of Right and making them applicable to the states. If anything was clear to the delegates in 1849, it was that if there were to be any constitutional protection for the rights and liberties of Californians against action by the state, it would be through the constitution they were drafting in that modest hall in Monterey.

The California constitution is of course not unique in these respects. Every state constitution has its roots in the early state constitutions that preceded the Bill of Rights, and in that historical sense every state constitution is independent of the federal Constitution. A story similar to that of the Monterey convention could be told about the constitution of every state in the Union.

The implication of this independence is of tremendous importance to the law. It means that citizens may have greater rights in some respects under the constitution of their state than under the federal Constitution. Although the federal Bill of Rights (or most of it, at least) applied to the states (through the due process clause of the Fourteenth Amendment), it establishes only a floor of protection. States are free to provide greater protection through their respective constitutions.

This has always been the case, but until the 1970s state constitutional law had been overshadowed by federal constitutional developments. It was the United States Supreme Court that took the lead in developing theories of constitutional protection for such basic rights as freedom of speech, due process of law, and equal protection of the laws. That development began in the 1920s and flourished during the era of the Warren court. Meanwhile state constitutional jurisprudence in the human rights arena was virtually nonexistent. To suggest that state courts should suddenly begin to put flesh on state constitutional skeletons after such weighty pronouncements from the high court seemed like academic chutzpah and in any event would have been of little significance. It seemed a bit artificial, if not redundant, for state courts to speak in terms of their state constitutions when so much was being said from Washington, D.C.

That was my view on 1970 when I took a leave of absence from my law practice to teach at the University of Oregon Law School in Eugene. Among the subjects I undertook to teach was constitutional law, and since I had never taught it before, I consulted an eminent colleague at the school, Hans Linde, who was a constitutional specialist. Hans was then in the process of becoming a leading advocate of the doctrine of “independent state grounds” – the technique of relying on the state constitution instead of the federal constitution – both within academic circles and later, as an associate justice of the Oregon Supreme Court, within the judiciary. He tried his best, in his extremely reasonable and logical way, to convince me of the merits of his position. Not only were state constitutions historically prior to the federal constitution, he argued, they were logically prior as well. Over time it has become accepted that courts will not decide a constitutional issue if they do not have to. When a statue is challenged as being unconstitutional, a court will confront the meaning of the statute first; if the statute can reasonably be interpreted to avoid reaching the constitutional question, that is what a court will do. This procedure is considered to be part of appropriate judicial restraint. Why shouldn’t that same restraint operate within the constitutional arena? Linde demanded. If a state statute is under challenge, and there is no room for interpretation that would avoid the constitutional question, why not look first to the state constitution since if the statute is unconstitutional under that document, there is no need to look further. This was the essence of Linde’s analytical argument.

I must say, though I am not proud of the fact, that I was resistant. It seemed a bit presumptuous, I thought, for a state court to state talking about its state constitutional protection of free speech, for example, when it had deferred for years to the high court’s pronouncements on the subject. I patted Hans on the back and assured him that his theory was not without logical charm. He smiled, and waited.

In succeeding years, as the United States Supreme Court pursued a more conservative course and withdrew from some of the Warren court’s interpretation of the federal Bill of Rights, the practical significance of independent state grounds became apparent. This retreat made it more attractive to explore the possibility, which had always existed, that people might have rights under the constitutions of their respective states that they did not have under the federal Constitution. In California the implications were made explicit in a constitutional amendment, adopted by voter initiative in 1974, providing as follows: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”

These developments accelerated the acceptance of the state constitutions as independent sources of civil rights and liberties. Concomitantly, however, they laid proponents of state constitutional jurisprudence open to the charge of using state constitutional theory to bypass the United States Supreme Court in order to achieve a particular result. That was not all Hans Linde’s motivation – he was not very fond of Warren court precedents to begin with – but in that atmosphere the logical and historical arguments for the independence of state constitutions tended to get lost.

In my case it was not until I became a judge and began to look at the state constitution in the light of its history and in the context of cases I was called on to decide that I became fully persuaded of Linde’s view. The reports of the first California constitutional convention are themselves adequate to convince any skeptic that the framers intended the California Declaration of Rights to stand as an independent document. Moreover, the records of the next convention, in 1878, are replete with discussions that evidence of an Intent to establish rights in that one could argue exceeded the scope of federal protection. I decided that I simply could not be faithful to the oath I took upon becoming a judge without giving full and independent consideration to the constitution of California. I became a convert.

The significance of independent state grounds is nicely illustrated by Pruneyard Shopping Center v. Robins. Pruneyard is a privately owned shopping center in Campbell, California. Like most shopping centers it has parking areas, walkways, plazas, restaurants, and shops. At the time of the litigation it also had a very restrictive policy with respect to the circulation of petitions and other such activities, unless it related to the commercial purposed of the center you could not do it.

A group of high school students who were opposed o a United Nations resolution against Zionism put that policy to the test. On a Saturday afternoon they set up a card table in a corner of Pruneyard’s central courtyard, distributed pamphlets, and asked passerby to sign petitions, which were to be sent to the president and to members of Congress. Their activity was entirely peaceful and orderly, but a security guard informed them that they were in violation of Pruneyard’s policy and asked them to leave. They did, but then they filed a lawsuit to enjoin Pruneyard from denying them access.

In 1979, when that lawsuit reached the California Supreme Court, the students’ legal situation under the First Amendment to the federal Constitution was extremely weak. The First Amendment says, in effect, there shall be no law abridging freedom of speech. In order for the amendment to apply, therefore, some governmental action is required; a private act abridging freedom of speech is not within its reach. At an earlier time, in 1968, the United States Supreme Court had held in Food Employees v. Logan Valley Plaza that a shopping center was a sort of town within a town and that even though privately owned, it could not absolutely preclude peaceful political activity on its premises. Four years later, however, in Lloyd Corporation v. Tanner, the Supreme Court repudiated that doctrine and held that the First Amendment does not apply to a shopping center; that was the state of the law when Pruneyard was argued.

But the students were basing their claim also on the California constitution. Though that document contains language similar to that of the First Amendment, suggesting that state action is required (“A law may not restrain or abridge liberty of speech or press”), it includes other language that does not mention state action. “Every person may freely speak; write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” Partly on the basis of this difference in phrasing and partly on the basis of its finding that in California the shopping center is a particularly significant forum for the exercise of speech and petition rights, the California court, in an opinion by Justice Newman, decided that Pruneyard was in violation of the state constitutional right to free speech.

This story has as sequel. Pruneyard asked the United States Supreme Court to review the state court decision, arguing that California had violate its property rights under the federal Constitution. That court granted review but denied Pruneyard’s claim. In an opinion by Justice William Rehnquist, the high court first made clear that its decision holding that a shopping center is not subject to the First Amendment in no way deprived California of the right to adopt in its own constitution “individual liberties more expansive than those conferred by the Federal Constitution.” It then went on to consider, and reject, the balance of Pruneyard’s claim. The case is an important precedent in the application of independent state grounds.

Some state constitutions list rights that are not expressly mentioned in the federal Constitution. The right to privacy is the most important example. The United States Supreme Court, in Griswold v. Connecticut, held that the federal Constitution contains a right of privacy by implication, a holding that “strict constructionists” have criticized both on the ground that it reflects excessive judicial “activism” and on the ground that the right it recognized is too amorphous for principled application. In his testimony before the Senate committee considering his nomination to the Supreme Court, Judge Robert Bork emphasized the vagueness of the concept of a “right to privacy” and suggested that no thoughtful constitutional framer or voter would want to include such an amorphous right in a constitutional listing of protections citizens have against their government.

Judge Bork was apparently unaware of state constitutional developments in that respect. The Washington and Arizona constitutions contained right-to-privacy provisions as early as 1889 and 1911, respectively. In 1972 the voters of California by initiative amended the California constitution to include privacy among the rights in declares to be “inalienable.” The Alaska and Montana constitutions were amended about the same time to add similar language. Louisiana in 1975 and Florida in 1980 followed suit. Apparently, the citizens of these states believed that the word conveyed a meaning the courts could be expected to implement. And in an attempt to clarify that meaning the courts of those states have produced some in testing and important opinions.

The Supreme Court of Alaska, for example, has held that the right-to-privacy provision in that state’s constitution is violated by a law prohibiting the possession of marijuana insofar as the law applied to the possession of a small amount in one’s home. California courts have relied on the privacy amendment to the California state constitution in holding that public employees may not be required to submit to lie detector (polygraph) tests; that police who believe that someone is growing marijuana in his or her fenced-in back yard must have a warrant before they conduct an aerial search; and that if the state chooses to provide funding for medical procedures for the poor, it cannot withhold funding for abortions. Moreover, the California privacy provisions, like the provision on freedom of speech, is phrased in terms that do not refer to action by the state, and California court have held that its protection (unlike that of the federal Constitution) extends to invasions of privacy by institutions such as a private university. Current litigation will determine whether it may protect employees against overly intrusive methods of testing for drugs.

But even when the language in the state and federal constitutions is the same, there is no compelling reason for a state court to defer to the United States Supreme Court’s interpretation of what is, after all, a different document with a different constitutional history. While I was on the California Supreme Court, a case came before us that illustrated that problem in a dramatic way. Policy had obtained a defendant’s confession after Miranda warnings had been given but while an attorney who had been retained by the defendant’s friends and family was waiting at the police station to talk with him. The question was whether the police had an obligation to advise the defendant of the attorney’s presence and whether their failure to do so rendered the confession inadmissible. Numerous state courts had confronted that question, and their virtually unanimous response was that the confession should not be admitted,. But while the case was pending before our court, the United States Supreme Court had an almost identical case on its docket, and they managed to decide theirs first, holding 6-3 that the Fifth and Sixth amendments to the federal Constitution were no bar to admission of the confession.

There were no relevant differences in language between the California and United States constitutions, nor could we point to any distinctive history in support of a different interpretation. But the United States Supreme Court did not rely on history in support of its decision either; rather it was a matter of applying existing principles in the light of fairness and practicality. Our court said that the opinion of the United States Supreme Court in such a case was entitled to a “respectful consideration”; but having given it all the consideration we thought it deserved, we found ourselves in agreement with the dissenter in the high court and with the various state courts that had confronted the issue.

The merits of the underlying issue in that case—whether police have a duty to advise a person under questioning that his or her attorney has arrived – are irrelevant to my point; namely, that in such a situation a state court should consider itself free to apply its own view of the matter. Of course, it should consider the views other courts have expressed; but there is no reason to feel constrained by the views of the United States Supreme Court as to the meaning of the federal Constitution could be litigated through the United States Supreme Court. It is a practical obstacle, however, and an unjustifiable one.

I am sympathetic toward state court judges who have participated in such decisions; in fact, were others to undertake a careful review of my own record in that light – something I have not mustered the enthusiasm to do myself – they might well discover that I am not blameless. There is an understandable temptation for state court judges to place the responsibility of the United States Supreme Court for what might be unpopular results, especially in criminal cases, rather than to assume responsibility themselves by applying the constitution of their state. I think, however, that both the public and the institution of the judiciary are best served by forthrightness in that regard.

Despite occasional vacillations, the doctrine of independent state grounds is clearly here to stay. Its acceptance within the legal community is no evidenced, not only by decisions of the United States Supreme Court, but also by the gradual emergence of law school programs and casebooks and by academic and professional conferences. Law students and lawyers are slowly coming to understand that if they have what they regard as a constitutional issue, it is their responsibility to look first to the state constitution. In this way a long lost legacy is being regained.

Jeffrey S. Sutton, “Why Teach–And Why Study–State Constitutional Law,” 34 Okla. City U. L. Rev. 165 (2009)

Let me shift from speculating why state constitutional law is not offered at most law schools to explaining why it ought to be. Start with lawyers’ duties to their clients–to solve a client’s problem by prevailing in a case. When, in the words of Justice Kennedy, “the Framers split the atom of sovereignty,” they created a system of government that features two sets of sovereigns, that produced fifty-one constitutions and that in the end places two sets of constitutional limitations on the validity of (nearly) every state and local law. Lawyers are problem solvers, and when a state or local law stands in the way of a client’s objective, it generally will matter little to the client whether the lawyer manages to strike the law on federal or state grounds.

A constitutional claimant needs to win just once. No State permits a law invalidated under its constitution to be enforced; and the Supremacy Clause of the United States Constitution prohibits any State from enforcing laws invalidated under the Federal Constitution. A necessary consequence of a system of dual sovereignty is that it permits serial, or at least dual, claims of unconstitutionality. While federal judges are not known for giving legal advice, it seems to me that the first reason for teaching, and the first reason for studying, state constitutional law is simple: Lawyers are paid to solve problems for their clients, and one way to do that is to win cases. A lawyer paid to help a client win a case usually will have some explaining to do if he opts to take just one shot, rather than two, at knocking out a state or local law.

State constitutional law not only gives the client two chances to win, but, in many cases, it also will give the client a better chance to win. Imagine two judges who are identical twins. They are the same in every relevant respect, save one: The first twin sits on the United States Supreme Court, while the other twin sits on the New Jersey Supreme Court. My submission is that, all else being equal, a lawyer for an individual-liberties claimant will have an easier time convincing the twin who sits on a state supreme court to rule his way than convincing the twin who sits on the United States Supreme Court.

The United States Supreme Court, in the first place, is at a considerable disadvantage relative to the state courts when it comes to defining constitutional rights and crafting constitutional remedies in many areas of the law. Because the Supreme Court must announce rights and remedies for fifty States, one National Government and over 300 million people, it is far more constrained than a state supreme court addressing a difficult problem for one State and, say, fifteen-million people. Legal commentators talk about liberal and conservative judges, but all United States Supreme Court Justices are sensitive to the risks of issuing rulings that prevent the democratic processes from working in fifty-one different jurisdictions. The more innovative a constitutional claim, as a result, the more hesitant the United States Supreme Court may be about entering the thicket.

New constitutional rights not only require the articulation of a new constitutional theory, they also require the management of a new constitutional right. All judges worry about the next case when they identify a new constitutional right. But United States Supreme Court Justices have more to worry about than state court judges in view of the breadth of their jurisdiction and the wider variety of circumstances that each new right will confront. In some settings, the challenge of imposing a constitutional solution on the whole country at once will increase the likelihood that federal constitutional law will be underenforced or that a “federalism discount” will be applied to the right. State courts face no such problem in construing their own constitutions.

State courts also have a freer hand in doing something the Supreme Court cannot: allowing local conditions and traditions to affect their interpretation of a constitutional guarantee and the remedies imposed to implement that guarantee. Does anyone doubt that the Alaska Supreme Court might look at privacy issues differently from other States or for that matter the United States Supreme Court? Or that the Montana Supreme Court might look at property rights differently from other States or the United States Supreme Court? Might the regulation of shotguns generate a different reading from a state supreme court with a rural population than one with a suburban and urban population? Might the state courts of Utah and Rhode Island construe a free exercise clause differently from other state courts? State constitutional law respects and honors these differences between and among States by allowing fifty constitutions to be interpreted differently to account for these differences in culture, geography and history.

A mistaken or an ill-conceived constitutional decision is also easier to correct at the state level than it is at the federal level. Not only do the state courts have a narrower jurisdiction and smaller populations that their decisions will affect, but the people at the state level have other remedies at their disposal: an easier constitutional amendment process and, for better or worse, judicial elections. It thus is an area where a court can feel more free to experiment–to be the familiar “laboratories of experimentation” that Justice Brandeis described.

Perhaps the most significant comparative advantage that state courts have over federal courts–and the key reason it sometimes will be easier to win in state rather than federal court–is that the legal and equitable complexities of many issues do not lend themselves to one-size-fits-all solutions. ] Having been a judge for six years, I can attest that there are some constitutional issues that do not readily submit to a clear answer. Many lawyers, law professors and law students, when coming across difficult areas of constitutional law, insist that there are no right answers to these questions or, worse, that policy preferences underlie judges’ answers to these questions.

As to these vexing areas of the law, what better time to permit the state courts to adopt their own interpretation of parallel (or somewhat parallel) constitutional guarantees found in their own constitutions? When difficult areas of constitutional litigation arise–equal protection, free exercise or property rights–why should we assume that the United States Supreme Court is a Delphic Oracle, that it is the only supreme court in the country able to offer an insightful solution to a difficult problem? Three distinct levels of scrutiny–rational basis, intermediate or strict–may be the best way to assess equal-protection claims, but it is hardly the self-ordained way. Rational-basis review may be the best way to assess free-exercise challenges to neutral, generally applicable laws as a matter of national constitutional law, but the same may not be true for each state constitution. A modest standard for enforcing the Takings Clause may work for national taking-of-property claims, but it is by no means clear that every State should embrace the same approach in addressing similar challenges under its own constitution. Or think of the many lawsuits that have been filed in the federal and state courts over the constitutionality of state systems for funding public schools in the aftermath of the United States Supreme Court’s rejection of a similar claim under the Equal Protection Clause. The more difficult the constitutional question, as these cases show, the more indeterminate the answer may be. In these settings, it may be more appropriate to have fifty-one imperfect solutions rather than one imperfect solution–particularly when imperfection may be something 6 we invariably will have to live with in a given area.

In some cases, moreover, the only way a lawyer can win is through the state constitution because it is the only constitution with a provision on point. State constitutions have a variety of clauses found nowhere in the United States Constitution: single-subject clauses; uniform-law clauses; and right-to-remedies clauses. And some state constitutions have exotic clauses found in few, if any, state constitutions.

So far, I have given two reasons why students ought to study state constitutional law: (1) every lawyer should prefer to have two arrows in her quiver rather than just one; and (2) it often will be easier to vindicate a state constitutional right in state court than a federal constitutional right in the United States Supreme Court.

There is a third reason: It may facilitate the development of federal constitutional law. The development of state constitutional law as a subject, and its revitalization as a litigation tool, may be the best thing that could happen for federal constitutional law. For too long, we have lived in a top-down constitutional world, in which the United States Supreme Court announces a ruling, and the state supreme courts move in lockstep in construing the counterpart guarantees of their own constitutions.

Why not do the reverse? That is the way other areas of the law traditionally have developed, be it tort, property or contract law. In these settings, the state courts are the vanguard–the first ones to decide whether to embrace or reject innovative legal claims. Over time, the market of common law decisions identifies winners and losers. An opinion by a Cardozo or a Traynor might become the benchmark, after which other state courts opt to follow that view or variations on it. Or the state courts might go their separate ways. In either event, the federal courts (and national legislature) profit from the experience, as they can choose whether to federalize the issue after learning the strengths and weaknesses of the competing ways of addressing the problem.

Why not follow a similar model with constitutional law? Not all federal constitutional issues, I recognize, give us the luxury of time to allow competing approaches to emerge. But when time allows and when the premium is placed on creating sound federal constitutional law, as opposed to quickly decided law, it is hardly self-evident that the country is better off when the federal constitutional issues are resolved first. Better, it would seem, to allow the state courts to work their way through the constitutional issues under their own constitutions–developing their own tests and doctrines along the way–after which the National Court can use the States’ experiences in developing its own federal constitutional rules. Let the state courts be the initial innovators of constitutional doctrines if and when they wish, and allow the United States Supreme Court to pick and choose from the emerging options. It is well to remember that the individual-rights guarantees of the Bill of Rights were based on pre-existing state constitutional guarantees, not the other way around.

If ever there were a propitious time for thinking twice about how we develop constitutional law, now may be it. The current United States Supreme Court is not the Warren Court. It still recognizes new constitutional rights, sure enough. Three cases from the October Term 2007–District of Columbia v. Heller (the gun case), Boumediene v. Bush (the Guantanamo Bay case), and Kennedy v. Louisiana (the child-rape death penalty case)– prove as much. But most commentators and professors, I suspect, would agree that the Burger, Rehnquist and Roberts Courts have been less likely to innovate new constitutional rights than their forebears.

The same has not been true of the state supreme courts over the last three decades. Whether it is school funding, property rights, the definition of marriage or other modern rights disputes, the state courts in recent years have gone from being civil-rights followers to leaders. There is, indeed, a softer side to federalism: A loss in the United States Supreme Court no longer inevitably foreshadows a loss in the state courts when the claim is premised on a state constitutional counterpart. And, as the current state law debates about gay marriage confirm, state constitutional litigation can proceed without waiting for, or worrying about, the shadow of federal constitutional law.

My point in all of this is not that innovative state court decisions are good or bad. That is beside the point. What is important is that no lawyer worth his or her salt can be a good advocate in today’s world without appreciating the possibility–and value–of raising state and federal claims in representing a client.Ask many law students why they went to law school, and you will find a common answer among many of them–the opportunity to make a difference in ground-breaking issues of the day. A lawyer cannot do that today without understanding state constitutional law and appreciating its significance in modern individual-rights disputes.

Alan Tarr and Robert F. Williams, “Foreword: Western State Constitutions in the American Constitutional Tradition”

G. Alan Tarr and Robert F. Williams, “Foreword: Western State Constitutions in the American Constitutional Tradition,” 28 N.M. L. Rev. 191 (1998)

It has been more than a quarter century since state supreme courts-both in the Western states and elsewhere-began to rediscover their states’ declarations of rights and confer greater protections than are available under current interpretations of the United States Constitution. It is now commonplace to attribute this new judicial federalism to the anticipated/dreaded/welcomed erosion of Warren Court rulings on civil liberties by the Burger Court. What is less recognized is the marked effect that this path to the rediscovery of state constitutions has had on our understanding of those documents. First, the new judicial federalism focused attention on one part of the state constitution, the state declaration of rights, rather than on the entire document. Even when scholars and litigators looked beyond the confines of the declaration of rights, as occurred in school-finance litigation, they did so in the service of rights, transforming state-responsibility provisions into rights guarantees. [FN3] Second, proponents of the new judicial federalism approached the rights guarantees in state constitutions in terms of how judges should interpret them, looking to state courts (as they had to federal courts) as the engine of constitutional reform. Third, in addressing the interpretation of state constitutions, scholars of the new judicial federalism viewed state constitutions in a vertical relational context, tending to read state provisions in view of their relation to analogous federal provisions. [FN4] Thus, an extensive literature developed about the conditions under which state courts were justified in diverging from Supreme Court interpretations of analogous federal provisions. [FN5] Finally, perhaps because of the narrow focus of research on the new judicial federalism, this research remained divorced from the broader body of constitutional law research, with a consequent loss in stature and in intellectual excitement.

Although current research continues to address how judges should interpret state constitutions, most of the legitimacy concerns associated with state judges’ development of state rights guarantees have been resolved. [FN7] Thus, in recent years, scholars began to explore alternative approaches to state constitutional interpretation, linking their research to the constitutional theory literature that has dealt with the interpretation of the Federal Constitution. [FN8] Professor Rachel Van Cleave’s fine contribution to the symposium demonstrates the benefits of this connection. [FN9] At the same time, her article reveals why distinctive features of state constitutions, such as the ease and frequency of their amendment, and the different eras in which they were adopted, require a distinctive approach to their interpretation. [FN10] This is particularly true for Western state constitutions, many of which were drafted over a century after the Federal Constitution and thus reflect a quite different understanding of constitutional design and of politics.

The recent literature on state constitutionalism has also moved beyond judicial interpretation of state constitutions to a broader perspective on the dynamics of constitutional change in states. [FN24] Perhaps the most striking discovery has been the ease with which state constitutions are revised and amended and the frequency with which states have availed themselves of the formal avenues for constitutional change. [FN25] The Western states stand out in their unwillingness to jettison their original constitutions– only three of the fifteen Western states have replaced their original constitutions, and only Montana has done so since 1900. [FN26] However, this is not because of an unwillingness to tamper with the framers’ handiwork-the Western states have been quite willing to amend their fundamental law. In fact, over the course of the twentieth century, the frequency of constitutional amendment in the Western states has increased. New Mexico’s experience is in many respects typical: from 1912-1969, it adopted seventy-three amendments, but from 1969 to 1995, it adopted ninety-eight. [FN27] The ratification rate for proposed amendments has also increased. Once again, New Mexico illustrates the trend: from 1912-1945, it ratified only thirty-five percent of proposed amendments, but from 1945-1995, it ratified sixty-five percent. [FN28]

In their preference for amendment over revision, the Western states reflect a century-long national trend: only twelve states have revised their constitutions since 1900. [FN29] What is atypical is the mechanism that several Western states have relied upon for constitutional reform. In most states, amendments can only be proposed by the state legislature. [FN30] Eight of the Western states, however, permit constitutional amendment by popular initiative as well.

The states’ development of distinctive institutions and practices, such as the constitutional initiative, has stimulated research designed to address why state constitutions differ from the Federal Constitution and from each other. Western state constitutions are justly famous for their devices for direct popular input in government: the initiative, referendum, and recall. Indeed, as Edward S. Corwin has observed, “one of the greatest lures to the westward movement of population was the possibility which federalism held out to the advancing settlers of establishing their own undictated political institutions, and endowing them with the generous powers of government for local use.” [FN37]This movement for popular involvement in governing has its roots in a shift in political thinking that occurred as early as the Jacksonian era, when the constitutional ideal of a negative constitution, that sought to protect liberty by limiting government, gave way to the ideal of a positive constitution, that sought to do so by granting power to the citizenry.

Constitutional ideas are transmitted from state to state. This horizontal federalism has been crucial in state constitution-making. [FN38] It was particularly important in the West, because Western constitution-makers had a wide range of constitutional models on which to draw. Indeed, there is evidence that state constitutional ideas were being developed and implemented by settlers from the Eastern states on their trek West. [FN39] Yet if Western constitutions were influenced by earlier Eastern models, the relationship was reciprocal. The Eastern states, in the words of Frederick Jackson Turner, felt the “stir in the air raised by the Western winds of Jacksonian democracy.” [FN40] Thus, the winds of state constitutional change blew not only to the West, but also back to the East.

Hether C. Macfarlane et al., California Legal Research, 2nd ed. (2013)

Chapter 5

California has had two constitutions. The first constitution was framed at a constitutional convention in September and October 1849 and ratified at an election on November 13, 1849, nearly a year before California became a state. A second constitutional convention met in 1879, and the voters ratified the new constitution on May 7, 1879. It became effective January 1, 1880, but is always referred to as the Constitution of 1879.

The provisions of the current California Constitution parallel many of the provisions of the United States Constitution, although the California Constitution provides for greater rights in some areas. Article I, section 1 lists the inalienable rights of California’s citizens. Among those rights are “enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”[1]

California has one of the longest constitutions in the United States because it covers many issues often thought of as being statutory in nature. (See Table 5-1.) For example, Article 1 section 2 provides the news media with a shield against an adjudication of contempt by a judicial, legislative, or administrative body for refusing to disclose unpublished information or sources. Because of the breadth of issues covered by the California Constitution, it is always wise to consider whether a constitutional provision affects a particular research problem.

Table 5-1. Articles of the Constitution of California

Article I Declaration of Rights

Article II Voting, Initiative and Referendum, and Recall

Article III State of California

Article IV Legislative

Article V Executive

Article VI Judicial

Article VII Public Officers and Employees

Article IX Education

Article X Water

Article XA Water Resources Development

Article XB Marine Resources Protection Act of 1990

Article XI Local Government

Article XII Public Utilities

Article XIII Taxation

Article XIIIA [Tax Limitation]

Article XIIIB Government Spending Limitation

Article XIIIC [Voter Approval for Local Tax Levies]

Article XIIID [Assessment and Property Related Fee Reform]

Article XIV Labor Relations

Article XV Usury

Article XVI Public Finance

Article XVIII Amending and Revising the Constitution

Article XIX Motor Vehicle Revenues

Article XIXA Loans from the Public Transportation Account of

Local Transportation funds

Article XIXB Motor Vehicle Fuel Sales Tax Revenues and

Transportation Improvement Funding

Article XX Miscellaneous Subjects

Article XXI Reapportionment of Senate, Assembly,

Congressional and Board of Equalization Districts

Article XXII [Architectural and Engineering Services]

Article XXXIV Public Housing Project Law

Article XXXV Medical Research

Note: Repealed and rejected articles are not listed.

I. Researching the California Constitution

You can research the California Constitution online using either Westlaw or Lexis or in either of the published statutory codes of California, West’s Annotated California Codes and Deering’s California Codes Annotated. In the print resources, the constitution appears in the first several volumes of both annotated codes. The index to the constitution appears in both code versions in the volume that contains the last section of the constitution. In electronic and print resources, the publishers have included additional documents, including the text of the Constitution of 1849, the U.S. Constitution, and various federal statutes affecting California, including the act for the admission of the state to the union. The two publishers have not included exactly the same additional documents, so if possible check materials from both publishers when looking for a specific document.

As explained in Chapters 1 and 2, begin your research by generating a list of research terms from the facts and issues of your problem. Use those terms in either a keyword search or in an index and then record the references given. For example, using the term “Searches and Seizures” leads to references to Article I, sections 13 and 24 of the California Constitution.

To find cases and other authorities that have discussed a certain provision of the state constitution, look for the editorial material that follows the text of the particular section of each relevant article. This material includes historical notes, cross-references to statutes, citations to relevant law review articles, references to analogous sections of the U.S. Constitution, and case annotations. These case annotations are called “Notes of Decisions,” and they reference cases and attorney general opinions. Each annotation contains a brief summary of the source referenced and its citation, which will enable you to locate the actual source. (See Figure 5-1). Be sure not to rely on the short summary; reading the text of the source itself is the only way to analyze its relevance to your research.

The Notes of Decisions are divided into subject-matter categories chosen by the publisher. In Lexis, Westlaw, and West’s Annotated California Codes, these categories are outlined at the beginning of the Notes of Decisions; there is no similar outline in Deering’s California Codes Annotated. If the version you are using has an outline, begin research in the annotations by looking over the outline for the area that is most pertinent to your research. This initial scanning of the outline is particularly important for researching sections of the constitution that have been discussed in many cases and attorney general opinions, such as in the example in Figure 5-1. Note that the annotations listed in these sources do not represent every authority that may be relevant to your search. To find additional cases on point, use the strategies discussed in Chapter 4. Chapter 10 explains using secondary sources as research tools.

Finally, the California Constitution is also available online without charge on two state websites: www.leginfo.ca.gov/const.html and http://leginfo.legislature.ca.gov/faces/codes.shtml (click on “California Constitutions” at the top of the list)[2] The websites contain links to a table of contents and a search engine that allows searching by keyword. Neither includes any case annotations or other editorial enhancements.

II. Interpreting the California Constitution

California courts interpret a constitutional provision by considering the intent of those who enacted it. “To determine that intent, courts look first to the language of the constitutional text, giving the words their ordinary meaning.”[3] In determining the “ordinary meaning” of the words, California courts may look to dictionaries, including legal dictionaries, and to decisions of other courts considering the same or similar language.[4] However, the words of the constitutional provision “’must receive a liberal, practical common sense construction.’”[5] Moreover, the “literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers.”[6]

When the language of the provision is not clear, California courts look to the source of the constitutional provision in interpreting its meaning. For provisions of the Constitution of 1879 that are still in effect, the court can look to the proceedings of the constitutional convention of 1879, as well as to the daily journal of the debates. Both are difficult to find in most libraries, although microfiche copies are available through the Congressional Information Services (CIS) State Constitutional Conventions set, which some libraries have.

Because the current California Constitution has been amended repeatedly, your research is likely to involve a section that was not part of the Constitution of 1879. The constitution may be revised through a constitutional convention called by the legislature.[7] It may be amended through either a proposal passed by a two-thirds vote of each house of the legislature[8] or by a voter initiative;[9] in either case, voters then have the opportunity to approve or reject the proposal or initiative.[10] The distinction between revision and amendment relates to the scope of the proposed change, and it can be crucial to the viability of the attempted change. The California Supreme Court has held that revision, which is a more sweeping change to the constitution than amendment, must be done through a constitutional convention and may not be accomplished through the initiative process.[11]

In deciding a 2009 challenge to Proposition 8, the ballot initiative that amended the constitution to forbid recognition of same-sex marriages in the state, the court clarified the distinction between a revision and an amendment to the constitution.[12] The court identified a revision that works a “fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution.[13] To be fundamental, a change must affect the structure of the state government “’or the foundational powers of its branches.’”[14] The court has only once found such a fundamental change in a voter-approved initiative in recent decades.[15] In that case, the initiative purported to order the court itself not to find greater protections for criminal defendants under the California Constitution than they could receive under the U.S. Constitution.[16] The court deemed this limitation on its own powers to be a revision of the state’s constitution.

The initiative proves was adopted in a number of states during the Progressive Era in the early 20th century in response to legislative corruption. California adopted it in 1911, largely to address the control of the legislature by the railroad companies. This process allows votes to propose amendments to the state constitution by placing measure on the election ballot. Voters begin the process by submitting a petition with at least a certain number of signatures of qualified voters; this number is equal to 8% of the number of voters in the previous gubernatorial election (it is 5% for an initiative that proposes a statute).[17]

Because the initiative process has become increasingly popular since the success of the property tax initiative Proposition 13 in 1976, the ballot may contain more than one initiative that addresses the same subject. If the voters pass two or more conflicting initiatives in the same election, the constitution includes the unusual rule that the measure that received the highest number of votes in the election prevails.[18]

If a court must look behind the wording of a section of the constitution added or amended by voter initiative, it looks for evidence of the voters’ intent in the ballot summary and the arguments and analysis presented in the California Voter Information Guide. That pamphlet is prepared before each election and distributed to all registered voters by the secretary of state. Complete sets of these pamphlets from 1911 forward may be found in a few larger libraries, but most law libraries are likely to have voter pamphlets from only the last decade or two. The California Secretary of State’s Office maintains an electronic database of voter pamphlets dating back to March 1996 at www.sos.ca.gov; under “Elections,” click on “Ballot Measures.”

State constitutions in early America, 1777-1790

Donald S. Lutz, The Origins of American Constitutionalism

The Colonial Heritage

Let us now begin to set forth precisely what in the early state constitutions resulted from colonial theory and practice. Without a close examination of all the writings by the men involved in drafting the various state constitutions, the following list must be considered provisional and suggestive rather than definitive.

The aspects of the American constitutional tradition that flow from the colonial heritage are:

The basics for a civil society are in a single document.
The document is replaceable.
A double agreement is in the foundation document – first, among the people, with elements from the covenant/compact tradition; second, between the people and the government, with elements derived from charters.
The first part of the agreement creates a people and a civil society, and defines the basic goals and values of that society.
The first part of the agreement is put in a preamble and/or bill of rights.
The second part of the agreement creates a set of institutions for collective decision making.
The second part of the agreement is found in a separate section of the document more properly called a constitution.
There are certain fundamental beliefs, or basic symbols, upon which constitutional government rests, including:
the belief that humans possess equally the ability to give and withhold consent (the symbols of liberty and equality):
the belief that government should be based upon the people’s consent (the symbol of popular sovereignty);
the belief that the people at large possess those abilities and attitudes required for self-government (the symbol of a virtuous people);
the belief that the most important virtue, for the people at large and those in government, is to seek the well-being of the community (the symbols of the common good, majority rule, and deliberative process).
There are certain principles of constitutional design, among which are:

a. frequent elections;

b. a broadly defined electorate;

c. legislative supremacy;

d. limited government;

e. separation of powers (no holding several offices at the same time);

f. a system of checks on the executive (and thus the judiciary), primarily through the power of the purse;

g. division of power between colonywide and local legislatures, often in a federal structure.

10. Certain rights are inalienable, including:

a. the right to give and withhold consent;

b. the right to freedom of conscience;

c. the right to a trial by jury of one’s peers.

11. All other rights are alienable when the common good so requires and when the people or their representatives consent12. These alienable rights are listed in a bill of rights.

All these aspects came to Americans in 1776 through the three frames of charter, covenant, and common law. However, some important points of American constitutionalism remained to be worked out, partly in the early state constitutions and partly by the Federalists in the national Constitution. For example, separation of powers was not a new idea, but a theory with practical institutional consequences was not yet fully articulated. Neither bicameralism nor an independent executive was yet part of American political thought. The idea of electing a special convention to write a constitution, which the people would then approve in a referendum, was not yet well developed—these were more often than not legislative activities.
Also, the concept of using an amendment process, as opposed to replacing the entire document, did not yet exist.

The early state constitutions contributed significantly to the development of each of these constitutional principles though some reached final fruition only in the national Constitution of 1787. For example, the distinction between normal legislation and extraordinary political acts such as the design and approval of constitutions was only partial in 1776. Certain state constitutions, such as 1780 Massachusetts and 1784 New Hampshire documents, would fully articulate and exemplify the distinction, and the Federalists would ratify the principle. The idea of checks and balances was present institutionally in the early state constitutions, but it was up to the Federalists to articulate the theoretical underpinnings. By 1775, American constitutionalism was well developed. The early state constitutions would significantly advance that stage, which would be apparently completed in 1787. But, as we will see, American constitutionalism continued to evolve.

American patriots of the 1770s frequently referred to themselves as Whigs, a symbolic bow to the commonwealthmen of the previous century with whom they shared much and who also called themselves Whigs. Some have concluded that the similarity in beliefs as well as in name indicates that the commonwealthmen’s theory was the decisive influence on the American constitutional tradition. The English writers of that period certainly swayed the American’s, but once again the colonists’ selective appropriation deepened and made more precise their view of politics. Furthermore, the English Wigs had been relatively short-lived.
By the 1730s, they were politically defeated, in theoretical disarray, and in the process of evolving into something else. On the other hand, in America the essential Whig approach to politics predated the Commonwealth, developed largely independent of political events in England between 1640 and 1660, continued to evolved and dominate American politics for the next half century, and heavily influenced American politics well into the twentieth century. Of greater concern to us, the Whig political principles, assumptions, and commitments inherited from the colonial era dominated the literature surrounding the writing of the first two dozen state constitutions, and thereby formed the basis for the constitutions themselves.

In late 1775 the Continental Congress instructed the states to draft constitutions that would “establish some form of government” independent of the Crown. Three states chose to continue under their respective colonial charters. The Massachusetts Explanatory Charter (1725) modified the Massachusetts charter of 1691 to bring it more in line with the practices originally evolved through such documents as the Pilgrim Code of Law (1636), the Massachusetts Body of Liberties (1641), and the Puritan Laws and Liberties (1658). The Connecticut Charter of 1662 basically confirmed the Fundamental Orders of Connecticut (1639) ads the operative constitution in the combined Connecticut and New Haven colonies. The Rhode Island Charter of 1663 confirmed the government that had evolved from the compacts forming the four original settlements through the Plantation Covenant at Providence (1640), the Government of Rhode Island (1641), and the Acts and Orders of 1647. Massachusetts, Rhode Island, and Connecticut continued to operate under constitutions written during the previous century.

The First Newly Written State Constitution

New Hampshire wrote the first new constitution framed by an independent American commonwealth. The document is only eighty-eight lines long.

Voted, That this Congress takes up civil government for this colony in manner and form following, viz.

we, the members of the Congress of New Hampshire, chosen and appointed by the free suffrages of the people of said colony, and authorized and empowered by them to meet together, and use such means and pursue such measures as we should judge best for the public good; and in particular to establish some form of government, provided that measure should be recommended by the Continental Congress: And a recommendation to that purpose having been transmitted to us from the said Congress: Have taken into our serious consideration the unhappy circumstances into which this colony is involved by means of many grievous and oppressive acts of the British Parliament, depriving us of our natural and constitutional rights and privileges. [There follows a list of grievances.]

The sudden and abrupt departure of his excellency John Wentworth, Esq., our late Governor, and several of the Council, leaving us destitute of legislation, and no executive courts being open to punish criminal offenders; whereby the lives and properties of the honest people of this colony are liable to the machinations and evil designs of wicked men, therefore, for the preservation of peace and good order, and for the security of the lives and properties of the inhabitants of this colony, we conceive ourselves reduced to the necessities of establishing a form of government to continue during the present unhappy and unnatural contest with Great Britain; protesting and declaring that we neaver sought to throw off our dependence upon Great Britain, but felt ourselves happy under the protection, while we could enjoy our constitutional rights and privileges.[1]

In this constitution, a single document, the people of New Hampshire grant Congress the power to make laws and write a new constitution. The relationship is asymmetrical, for the people have ultimate power. Those in government are to preserve peace and good order and protect lives and property, all according to the procedure set forth in the second part of the document. The constitutional elements derived from charters are present.

As for the foundation elements from covenants, there is a carefully wrought explanation for why the document is needed. A people is assumed already to exist from colonial times, and therefore none is created here. The Lockean notion of one agreement creating a people and another creating the government is implicit here (though, as we have seen, the idea predates Locke in America). The assumption of a preexisting people strengthens the sense of continuity with the colonial era. The document creates a civil society, here called “form of government.” The self-definition is attenuated—there is no bill of rights. We do see a people seeking peace, order, justice and security. Most of the document describes political institutions. The prominence of this last foundation element is typical of an American constitution in evolve form, but the document also derives from the covenant/compact tradition.

Herein also are the basic symbols first encountered in the early colonial documents. The see themselves as a virtuous people (at least as an “honest people”), and they speak of pursuing the common good. Government obviously rests upon the consent of the people, and popular sovereignty necessarily implies a free people as well. There is a commitment to equality; apportionment of the upper house is based on a distribution of population, and property requirements for voting and for holding office are relatively few.

Aside from popular sovereignty, there are many other principles of constitutional design. The use of elections implies majority rule, though that is nowhere explicit. The bicameral legislature, the provision that all laws must be passed by both houses, and the careful description of the logic used to reach the point of writing a new constitution, all indicate a commitment to a deliberative process. A representative body is kept close to the people through annual elections. The lower house selects the upper house, or council, the first time, but thereafter the people do. The document thus reflects a minimal commitment to the principle of filtering upward men of greater virtue. Similarly, there are no property requirements for voting, and a freehold is required for holding office in the upper house only. The same evidence also points to the principle of limiting the electorate to those of independent will and with a stake in the community. Other legislation required a poll tax for voting, but that was not extreme for the time.

The legislature has supremacy: it makes all laws and elects or appoints all officers. Aside from the reference to the rights and privileges of Englishmen, which brings in the common law. There is no explicit reference to rights. The people’s basic right to consent to taxation and to government is clearly implied in the language of the document. There is no mention of local control beyond having each county elect its respective members of the upper house in the future.

In sum, New Hampshire wrote a rather radically egalitarian version of an American Whig constitution. The majority, through its legislature, had relatively few restrictions on its power, except in the adherence to a process of decision making and in the limits on the common law.

The Next Two Constitutions – The South

The New Hampshire document was adopted in January, 1776. In March, South Carolina adopted the second new constitution. Its long introduction details abuses by king and Parliament similar to the list to be published in the Declaration of Independence four months later. The charter elements, compact elements, and basic symbols found in the New Hampshire Constitution are generally in the South Carolina document as well. The latter is somewhat more traditionally Whig in its principles of constitutional design.

The lower house elects the upper house, and together they elect the governor and his privy council. Two different sections require a separation of the executive branch from the legislative through a prohibition of holding several offices at once. Legislative supremacy is limited only by an executive veto, but then the executive, a creature of the legislature, could hardly be expected to have an independent will. The legislature is apportioned according to the population of counties. Electors have to have at least fifty acres freehold. Property requirements for officeholders are about the same as in New Hampshire, but the governor must be worth at least £10,000. South Carolina’s attachment to the principle of filtering upward men of greater virtue is clear.

Otherwise, there is the general commitment to popular sovereignty, majority rule, deliberative processes, and representation. Elections are to be every two years. Only this document and the 1790 South Carolina Constitution—out of the first twenty-five state constitutions—do not call for annual elections. There is no bill of rights in the 1776 constitution, nor is there any mention of common law rights beyond a section guaranteeing jury trials.

Three months later, in June, 1776, Virginia adopted its constitution. The principles underlying its design were similar to those of South Carolina, though it was somewhat closer to what would become the main Whig form. Both houses were elected by the people, and the legislature elected the executives. As in South Carolina, the legislature elected the executives. As in South Carolina, the legislature appointed members to the courts. No property requirements were specified for voting, and the requirements for officeholders were minimal—a freehold, usually of about fifty acres.

The discussion of individual documents could continue at great length. It will, however, be more fruitful to look at all the only state constitutions.

An Overview

It is useful to divide eighteenth-century state constitutions into three “waves” of adoption. The first followed quickly after the Continental Congress in May.1776, recommended that the sates build new governments. The second included three constitutions that resulted from longer deliberations and three that replaced earlier documents. The third wave will not concern us here. It includes constitutions by three new states of their constitutions in light of Federalist political principles.[2]

First Wave	Second Wave	Third Wave
1776	New Hampshire	!777	New York	1789	Georgia
	South Carolina		Vermont	1790	South Carolina
	Virginia	1778	South Carolina		Pennsylvania
	New Jersey	1780	Massachusetts	1792	Delaware
	Maryland	1784	New Hampshire		Kentucky
	Delaware	1786	Vermont		New Hampshire
	Rhode Island			1793	Vermont
	Connecticut			1796	Tennessee
	Pennsylvania			1798	Georgia
	North Carolina
1777	Georgia

Each of these constitutions defines a political system (institutions for reaching collective decisions) and a political culture (the values that inform and animate the system). What is striking is that the documents display considerable inventiveness, but there are nevertheless strong institutional similarities and a political culture, with three variations, basic to them all.

The first eighteen state constitutions certain the following institutions: 1) A bicameral legislature (sixteen constitutions, Pennsylvania, not in 1776 but in 1790; Georgie); 2) Direct popular election of the lower house; 3) Enfranchisement of white adult males (eight to ten times about what it was in England); houses (seventeen constitutions. Maryland elected an electoral college, which in turn elected the Senate); 5) Annual elections for the lower house (not South Carolina in 1776); 6) Annual elections for the Senate (ten constitutions), and three had staggered, multiyear terms; 7) Legislature elects the executive (nine constitutions), or a popular election essentially identifies the major candidates from among whom the legislature picked the governor (six constitutions); 8) Annual elections of the governor (fourteen constitutions), biennial elections (two constitutions), and triennial elections (two constitutions); 9) Voters had to own property, usually about fifty acres or the equivalent (twelve constitutions), or had to be tax payers (four constitutions). Two had no property requirement; 10) There was the same property requirement for voters electing the upper house and the lower house (thirteen constitutions); 11) There was the same property requirement for voters electing the executive and the lower house (eight constitutions); 12) Ownership of property necessary to run for the legislature (sixteen constitutions), with few exceptions requiring more property to run for office than to vote; 13) More property required of those running for the upper house than for the lower house (ten constitutions), and usually even more property was required of those seeing the governorship; 14) Bills of rights (except for Massachusetts, Connecticut, and Rhode Island, which initially operated as states under colonial charters, and New Hampshire and South Carolina, which wrote constitutions before the Declaration of Independence); 15) Alienable rights, with only two consistent exceptions—the right to free exercise of religion and the right to trial by jury; 16) State legislatures wrote the documents (thirteen constitutions), usually after an election during which it was made clear that the new legislature would also write a new constitution. The constitutions of Massachusetts (1780) and New Hampshire (1784) were written by a convention elected solely for that purpose and submitted to the people for ratification; 17) Amendment process (four constitutions in the first wave), in two of those instances the legislature is the amending agent. During the second wave, an amendment process is more frequently mentioned, but except for Massachusetts and New Hampshire (which give the amendment power to the people), the power is invariably given to the legislature.

Far from exhausting the similarities, the list allows us to outline the essential form of government that the early state constitutions produced. Perhaps most obvious is the manner in which the political systems had a bicameral legislature that was supreme. The executive, usually chosen by the legislature, was invariably weak. Courts were directly under the legislature, whereas in colonial times they had been under the executive.

This strong inclination to legislative supremacy is not surprising. The locus of colonial politics was the perennial struggle between the Crown appointed governor and the locally elected legislature. Using broadly based suffrage, the colonists kept tight control of legislatures, which gradually gained more power in most colonies. The relationship was so close that when the colonists spoke of “the government,” they usually referred to the executive only. The legislature was their protector against governmental tyranny, and they saw it as much more effective than were bills of rights and court.

With the coming of independence, Americans naturally retained their preferences for the legislature. The executive branch, though recognized as performing necessary functions, was stripped of power and made dependent upon the legislature. Typical provisions in state constitutions, in addition to having the legislature elect the executive, required legislative approval for executive veto power; often created a small group of legislators to assist the governor in approving legislation or granting pardons and generally tell him what to do; and, of course, moved the courts from the executive to the legislative branch. In second wave documents, as compared to those of the first wave, the executive recovered somewhat from his position of virtual political servitude. The first tentative steps were taken in the New York Constitution of 1777, and the 1780 Massachusetts document describes a resurrected executive. By 1787, only four states had executives worthy of the name.

Legislative supremacy, direct election of both houses, annual elections for all offices including governor, property requirements for voting, the same property requirements to vote for all offices, and above all a broadly defined electorate were among the many manifestations of a general commitment to government based on popular consent. If we exclude legislative supremacy, the list also represents the means, along with other devices, whereby the powerful legislatures were kept close to the people and made highly responsive to popular majorities.

Linking voting rights and property ownership does not seem to belong on any list of instruments for government by consent or for keeping the legislature close to the people, yet it does. There were essentially four arguments for property qualifications: owning property gives a person a stake in the community and thus ties the owner to its well-being; anyone who levies taxes must also be subject to them; and the use of property should be subject to the majority decisions of property owners only.[3] Despite such requirements, the states produced the broadest electorate in the history of the world up to that time. The major problem with state constitutions was not that such qualifications limited the electorate. Instead, the electorate was so closely tied to a supreme legislature, the constitutional system was unbalanced. Americans brought with them to independence only a portion of the successful constitutional system to which they had belonged as colonists. There was an inevitable period of adjustment during which political institutions lagged behind political needs. It is worth contrasting the operation of the colonial system and the one in effect shortly after independence.

The colonial American view of majority rule involved consensual decisions. Given the highly homogenous populations of most colonies, this is not unexpected. The most important issue on which there was no such decision was Christian sectarianism. The colonists removed sectarian considerations from politics, though they continued to inject broadly Christian values into constitutions.

Although there was no true aristocracy in America, colonial legislatures were nonetheless dominated by wealthy, educated men. Their higher standards of civility and more pronounced preference for stability and order, in addition to the striving for communitarianism over factionalism, created a situation in which highly democratic legislatures operated largely free of what are usually viewed as the natural excesses of democracy. Nor did it hurt that a governor, usually appointed by the Crown, stood as a barrier to unbridled majoritarianism.

Independence rapidly altered circumstanced. With only a few exceptions, most notably in Connecticut and Rhode Island, the governors as barriers disappeared, and in their place were anemic executives. The politics of deference seemed to vanish almost overnight, in part because of the rhetorical and theoretical stance necessitated by the opposition to Britain. Also, about a third of the “better sort” were Tories and were abruptly forced out of American politics. In many cases the colonial legislatures contained enough of these British sympathizers, so that alternate legislatures were elected in a successful attempt to bypass Tory efforts at moderation. In the operating state legislatures, an in those created by the new constitutions, the presence of the “better sort” declined sharply from majorities as high as 80 to 85 percent to minorities. They were replaced by moderately well off citizens, often similar to the yeoman farmer that Jefferson seemed to prefer.[4] There was also a drastic decline in the number of lawyers sitting in the legislatures. Finally, the electorate increased as suffrage requirements were relaxed somewhat or simply not enforced as rigorously. In most states the electorate probably expanded by 10 -15 percent. However, since the Tories were usually disenfranchised, and they represented 10 to 15 percent of those who voted regularly, the net change was not so much an expansion in the electorate as a redistribution in the economic classes now voting.

In effect, the situation was not really much more democratic than it had been before independence. However, the circumstances were significantly altered. The governors were now missing. Not only had they helped restrain legislative excess, they had also effectively provided a common enemy for the many colonial factions who papered over their differences to do political battle. With the common enemy gone, factionalism seemed suddenly to worsen. There were many more voters from lower socioeconomic levels who replaced the now-excluded Tories. This electoral used the available democratic means and the institutions form their colonial past to press demands upon legislature that now lacked most of the experienced, legally trained members of previous years. The balance resulting from the system of deference were gone with the changes in legislative membership and the revolutionary rhetorical style. An artificial yet useful communitarian consensus had existed among legislators before independence, but that did not survive. In its place was economic and social factionalism, a more accurate reflection of the divisions within society. In sum, it was a classic case of political culture lagging in the face of rapid change. The constitutional system was out of balance—part of the old system had been kept but another part lost. A new constitutional system was needed.

A New Constitutional System

There were efforts to keep as much of the old system as possible while replacing its lost or obsolescent portions with new institutions that made sense in the permanently altered circumstances. The process began not with the Federalists, but with those framing state constitutions. The second wave of constitutions reflects experimentation in this regard. By 1787, four states had revised their initial documents in ways that kept the strong legislatures closely tied to the population, but introduced new restraints. A somewhat stronger executive, stronger bills of rights, and attempts to distinguish between normal legislation and the writing and amending of constitutions are examples of this trend at the state level. It is notable that Connecticut and Rhode Island functioned without revising their constitutions. Their governors had for many years been subject to popular election, and the balances in their constitutional systems had already been worked out and could be retained intact.

The Federalists can be called conservative in one respect. They worked hard to replace some of the more radical state constitutions, especially the Pennsylvania document of 1776. As a result of their efforts, the new constitutional system preserved, perhaps conserved, what remained of the prewar system that was still of value. For example, Federalist concern over majority tyranny makes sense only if they intended to retain ultimate majority rule. They were not antimajoritarian but were seeking ways to restore balance to the system. Another example is the Pennsylvania Constitution of 1790, which the local Federalists wrote to replace the radical 1776 document. There is in it no real retreat from ultimate majority rule. A senate was added and had four-year staggered terms. The governor had a three year term instead of one year, and he was also given some significant power. But both branches of the legislature and the governor were to be elected directly by the people, there was no property requirement for those running for any office, and there was no property requirement for voters. Thus Pennsylvania had the broadest electorate of any state, virtually universal manhood suffrage. The Federalists did this, knowing full well that the very electoral would elect Pennsylvania’s members of the House of Representatives and a state legislatures that would vote on the states two senators.

The United States Constitution is usually viewed as conservatives or reactionary because the president and the Senate are not elected directly by the people. These devices are for filtering and slowing down the majority, not for replacing majority rule. The members of the electoral college are elected by the states and meet in their respective states. Those engaged in an antimajority cabal would more likely have used the Senate to elect the executive, or at least brought the electors together in one place where their deliberations could be better controlled. Another little-noted aspect is that under the Articles of Confederation, Congress was elected by the state legislature; in the U.S. Constitution, however, the lower house of Congress is elected directly by the people. If the Federalists were bent only on removing government from the people, this hardly seems the way to do it.

Nor is this all window dressing for a power grab by nonmajoritarians. The three most important powers of government, to tax, to appropriate, and to declare war, belong to Congress, and the two houses of Congress represent a direct majority of the people and the state legislatures closely tied to state majorities. The president has veto power and the powers of appointment and treaty making, but the first is subject to congressional override and the other two require Senate approval. Certainly this is a resuscitated executive, but the system of checks and balances in the U.S. Constitution greatly favored Congress and reflected a preference for legislative predominance.

One lesson learned from the earlier state documents was to take the judiciary away from the legislature. Putting the national courts under the executive would have been a conservative response, but instead the judiciary became a separate branch. This salutary innovation, one of America’s major contributions to constitutional history, was copied later at the state level and by many nations around the world. A separate judiciary helps to weaken the legislature compared to state legislatures. This is one of the clear instances in which the United States Constitution is in reaction to negative aspects of the state documents.

The Constitution is not a reactionary document. It is forward looking, it successfully created a new constitutional system appropriate to new political circumstances, it conserved what was best and central in the earlier American constitutional tradition, and it built upon and in many important respects derived from state constitutions. It is not useful to imply that the Constitution is primarily a reaction to the evils perp0etrated by fundamentally flawed state constitutions. Most state constitutions were retained intact for many years after 1787. When finally revised significantly or replaced, they became even more democratic than they had been. This is hardly evidence that excessive democracy had been their primary flaw. And from 1787 onward, the state constitutions were an integral part of the national Constitution.

The commitment to popular control of government continued at both the national and state levels. It was extended at the national level by means of perhaps the most revolutionary idea to come out of the founding era—an amending process contained in the Constitution itself. Any attempt to characterize the United States Constitution as simply conservative is likely to be misleading, unless one asks what it was supposed to conserve. It preserved the American constitutional tradition, which stretched back into the colonial experience and of which the Constitution is the ultimate expression. It preserved the basic commitments, values, and institutions of the early state constitutions. The United States Constitution is best described as creating a federal republic, and both federalism and republicanism are legacies from the early state constitutions.

Robert F. Williams, “The State Constitutions of the Founding Decade”

Robert F. Williams, “The State Constitutions Of The Founding Decade: Pennsylvania’s Radical 1776 Constitution And Its Influences On American Constitutionalism,” 62 Temp. L. Rev. 541 (1989)

The fifty-five delegates who attended the 1787 Constitutional Convention in Philadelphia already had wide experience, either directly or indirectly, with constitutional theory and constitution-making. By the time the Convention met that summer, the thirteen independent states had debated, framed, adopted, rejected, modified, and continued to debate at least twenty state constitutions in the period since 1775. Thus in the decade following Independence, the states, in the words of Jackson Turner Main, ‘became the laboratories for testing theories, trying the institutions in the various forms that presently appeared in the constitutions of the United States and other countries.’ Contemporaries of this period understood the experimental nature of those efforts at constitution-making. In 1778, for example, Thomas Paine applauded ‘the happy opportunity of trying a variety, in order to discover the best. . . . By diversifying the several constitutions, we shall see which State flourish the best, and out of the many posterity may choose a model. . . .’

The ‘founding decade’ of 1776-1787,half of it while the Revolution was still in progress, included an intense and concentrated focus on written constitutional theory and practice. The founding decade witnessed an internal political struggle over, in Carl Becker’s terms, ‘who should rule at home’ as well as the Revolutionary War struggle for ‘home rule.’ Even if some observers reject Becker’s assertion that the struggle over who should rule at home began prior to the Revolution, it must be conceded that this struggle was a central focus, together with military victory, during the founding decade.

The real controversies over the first state constitutions had little to do with rights. What was at stake was how the new state governments would be structured and which groups in society would have the dominant policy-making role under the new governments. The question of rights as we think of them today was not at the forefront of these debates.

Several important points have become much clearer since earlier studies of the first state constitutions. First, we now know that there was far more fundamental controversy, as well as diversity of opinion and interest, in the state constitution-making processes during the founding decade than was earlier thought. Although we should generally avoid the tendency to analyze historical events on the basis of oversimplified dichotomies, two competing views of governmental structure emerged in the framing of the state constitutions during the founding decade. Controversy surrounded both substantive questions of state constitutional content and procedural questions concerning the process of drafting and adopting the state constitutions. Social and economic interests, and the political and constitutional theories underlying their alternative visions of state constitutions, were very divergent.

The ultimate outcomes of the state constitutional battles were much closer and less predetermined than has been commonly recognized. Most studies of the early state constitutions focus exclusively on the documents as finally adopted. Those whose ideas did not prevail have largely been forgotten in much the same way that the antifederalists were, until recently, forgotten. Investigating the various constitutional theories and political positions of the time calls for viewing early state constitution-making ‘from the bottom up,’ or for ‘listening to the inarticulate. Despite their relative obscurity today, the unsuccessful arguments in the framing of the state constitutions, and the experience with government structures that seemed not to work well, were not lost on the Philadelphia delegates in 1787. By studying such ideas and institutions, we may find an important alternative perspective on what is too often portrayed as a consensus view of the proper constitution of government during the founding decade.

Historians and political scientists have identified two major ‘waves’ of state constitution-making during the founding decade. A key point in the first wave was the Pennsylvania Constitution of 1776—it was a direct stimulus for the second wave. The Massachusetts Constitution of 1780 was the central feature of the second wave. ‘The 1780 Massachusetts Constitution,’ asserted Donald Lutz, was the most important one written between 1776 and 1789 because it embodied the Whig theory of republican government, which came to dominate state level politics; the 1776 Pennsylvania Constitution was the second most important because it embodied the strongest alternative. The Massachusetts document represented radical Whiggism, moderated somewhat by the form of mixed government if not the actual substance. Pennsylvania Whigs wrote the most radical constitution of the era, one lacking even a bow in the direction of mixed government.

James A. Henretta, “Foreword: Rethinking the State Constitutional Tradition”

State constitutions in the antebellum era, 1800-1850

Lawrence M. Friedman, A History of American Law

Harold M. Hyman and William M. Wiecek, Equal Justice Under Law

Equal Justice Under Law: Constitutional Development, 1835-1875

by Harold M. Hyman and William M. Wiecek

Chapter 2: The Public Law

The American Union before the Civil War was a federation of states. It was further along the road to nationhood that the old Confederation of 1776-89 had been, but the states still retained internal sovereignty and remained important sources of constitutional development. Hence a constitutional history of the antebellum years necessarily reviews the public law of the states. For it was in the mundane areas of railroad finance, women’s rights, tor law. And the like that antebellum Americans worked out constitutional issued later subsumed by the federal government: the relationship of the individual to the state, the meaning of republican government, the limitations on state power.

At the beginning of the second half-century of the American Republic, the judges of the state courts were creatively applying doctrines of “higher law” that imposed limits on the power of state legislatures, designed to protect property rights as an element of republican liberty. Judges displayed a special tenderness for corporations, those new artificial legal beings so necessary to a dynamic, modern capitalist economy. At the same time, the state legislatures were responding to Jacksonian demands, partly entrepreneurial, partly democratic, for general incorporation laws. In the exuberance of their creativity, judges of the state courts created two new bodies of law: torts and contracts. Conservative lawyers fought off efforts to make the law comprehensible and accessible to the common people, successfully resisting a movement to codify the law until the twentieth century, when codification was accomplished on reform movements of the Jacksonian era, absorbing some reforms, repelling others. As never before or since, the public law of the states distributed privilege and power, burdens and discriminations, among various groups of American society. Legal historians justly call this the “Formative Era” and the “Golden age” of American law.

The antebellum period proofed to be a time of judicial activism. State judges confidently seized the chance to mold public policy and did not hesitate to challenge legislatures. Whig judges in particular, concerned that the democratic impulse might lead legislative majorities to experiment with legislation that threatened the security or the opportunities or the opportunities of private property, eagerly sought explicit limitations on legislative power in the state Constitutions. Often, however, they could not find them because the early Constitutions were comparatively spare, terse documents. They conformed to Chief Justice Marshall’s description: if a Constitution were “to contain an accurate detail of all the subdivisions of which its great powers will admit, [it] would partake of the prolixity of a legal code, therefore, requires , that only its great outlines should be marked…” So when judges could not find a suitable text, they fell back on higher law doctrines. The higher-law traditions holds that human lawmaking authority can enact laws only in conformity to principles derived from some higher source of law, usually divine. William Blackstone, in his Commetaries on the Laws of England (1765), boldly declared that “the law of nature. . . dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this.” Classical American constitutional jurisprudence absorbed Blackstone’s higher-law principles: Judge William Paterson’s Circuit Court opinion in Van Horne’s Lessee v. Dorrance (1795); Marshall’s majority opinion and Justice William Johnson’s concurrence in Fletcher v. Peck (1810), in which Johnson impiously maintained that higher-law ideas bind even God; Chancellor Kent’s Commentaries; and Joseph Story’s Commentaries on the Constitution.

The leading exposition of this view was United States Supreme Court Justice Samuel Chase’s opinion in Calder v. Bull (1798), in which he asserted, in dictum, that “there are no acts which the federal or state legislature cannot do, without exceeding their authority. There are certain vital principals in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. . . .The genius, the nature, and the spirit of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.”

But after the Dartmouth College case (1989), higher-law principles in their vague, generalized Calder v. Bull formulation disappeared from the language of the United States Supreme Court, save for an occasional opinion by Justice Story. Following Marshall’s lead, the federal courts voided state legislation only because of conflict with a specific clause of the United States Constitution. The contracts clause of Article I, section 10, was usually the prime candidate for this sort of employment, and it displaced higher law in the federal courts.

In the state courts, however, higher law flourished. It evolved from a demand that statutes affecting property be general, not special, to an insistence that such laws not be punitive or retroactive in applications. Courts in Connecticut, Tennessee, Maryland, and Delaware paraphrased the vague Calder v. Bull phrases to void state statues violating “eternal principles of justice,” “obvious dictates of reason,” “the nature and spirit of the social compact,” and “the law ideas became associated with specific constitutional texts, chiefly the law-of-the-land or due process clauses of the state constitutions. Chief Judge Thomas Ruffin of the North Carolina Supreme Court and Judge Greene C. Bronson of the New York State Supreme Court pioneered this effort.

In the 1840s, two types of social-reform legislation attracted the attention of judges employing higher law in defense of property: Married Women’s Property Acts and temperance legislation. In order to strike down laws vesting title in women to property they owned at the time of marriage, or statutes prohibiting the retail sale of liquor, judges relied indiscriminately on federal constitutional provisions like the contracts clause and state law-of-the-land provisions to bludgeon women’s emancipation and prohibition. But they were soon stymied by a formidable new doctrine: the police powers as “the power vested in the legislature to make. . . . all constitution, as they shall judge to be for the good and welfare of the commonwealth.” Shaw explained that in a

well ordered civil society. . . . every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that is shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. . . .Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature [may impose].

Thus expressed, police power was a potentially serious threat to property rights of all kinds and o the higher-law doctrine protecting them. Because Chief Justice Roger B. Taney of the United States Supreme Court was a devotee of the police power doctrine for his own purposes, viewing it as a means of protecting the states’ exclusive control of slavery, the state courts had to work out their own responses to the threat posed by the new doctrine. This task was made all the more difficult because the United States Supreme Court, though badly divided over commerce-clause issues, sustained the constitutionality of some forms of liquor prohibition in the License Cases (1847). Moreover, the Marshall Court had already held that the United States Constitution’s Fifth Amendment requirements of public purpose and just compensation for the taking of property were not applicable as restraints on the states’ exercise of police power. But the New York Court of Appeals met this challenge successfully in Wynehamer v. People (1856) when it struck down a state prohibition statue. Judge George F. Comstock asserted that “theories of public good or public necessity may be so plausible or even so truthful as to command public majorities. But whether truthful of plausible merely, and by whatever numbers they are assented to, there are some absolute private rights beyond their reach, and among these the constitution places the right of property.”

Married Women’s Property acts and prohibition statutes were not the only sources of concern for conservative jurists. Proponents of higher-law doctrines also feared that legislative majorities might regulate corporations in ways that would discourage the entrepreneurial risk-taking so important in a capital-scarce, industrializing economy. And with good reason: reform-minded Democrats and others did seek to limit the scope of corporate power, while investors’ spokesmen sought boundless opportunities for corporate activity. The struggle between these groups was so contentious partly because of the private, profitmaking corporation was a new creature of the law, radically different from its legal ancestor, the public corporation.

A series of technological innovations after Independence left America poised on the threshold of the Industrial Revolution: the factors (Samuel Slater build the first water-powered cloth mill in Pawtucket, Rhode Island, 1790): the factory system of production (Eli Whitney devised a system of assembling precision-made interchangeable parts in the manufacture of muskets, 1800); a new source of power (Oliver Evans perfected a high-pressure steam engine in 1787); and expanded market for the products of the industrial system (John Fitch and Robert Fulton devised steam-powered vessels, 1787-1807, and Peter Cooper built the first railroad in America in South Carolina, 1830). Samuels F.B. Morse’s invention of the telegraph – the first message was sent in 1844 – revolutionized business communications. But entrepreneurs’ ability to exploit these technological innovations was hampered by the lack of a suitable financial mechanism for amassing the large amounts of capital needed for long term investment.

The traditional partnership was unsuitable because it terminated with the death or withdrawal of a partner, and because each partner was liable for the debts of the entire enterprise. So investors before 1820 experimented with a variety of economic and legal forms for accumulating capital: limited partnerships (in which only some partners were fully liable for the partnership’s debts); the business trust (with management in the hands of “trustees,” and –profits accruing for the benefit of “beneficiaries,” the investors); and chartered “companies” or “associations” in a seemingly infinite variety of forms. Out of this trial-and-error, there emerged a new form that provided investors with the vehicle they sought; the private business corporation, a modification of the old public corporation, “an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which. . . are. . . considered as subsisting in the corporation itself, as distinctly as if it were a real personage.” The private business corporation proved to be an improvement on all earlier forms because it survived the death of any of its shareholders or officers: because, after a period of experimentation, its shareholders were not liable for more than the value of the shares they held or subscribed; and because it gave greater flexibility in amassing investment capital from numerous investors. But before this was achieved, the new corporation became the center of a controversy between investors, who sought to maximize its power and minimize its responsibility, and some political leaders, who sought the reverse. The legal history of the private business corporation before the Civil War is the story of how these opposing demands were compromised by legislative and judicial action.

At their most extravagant, investors insisted that corporations were virtually free from any form of state regulation—enclaves of uncontrolled economic power in the republic. Less grandiosely, investors sought three specific advantages over the partnership form: corporate immortality, limited liability, and transferability of shares. That is, they wanted a legal entity that would be exclusively responsible for its debts, rather than the investors or officers being liable; and that provided an easy means for an investors to come in or withdraw.

These demands, together with some fast-and-loose financial practices in the early banking corporations, created a climate of hostility among many political leaders. Virginians were among the most prominent enemies of the corporations. Judge Spencer Roane of the Virginia Supreme Court of Appeals thought that corporations were inherently suspect under Article IV of the Virginia Declaration of Rights, which stated that “no. . . .set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of publick services.” From this, he drew the conclusion that “if [the investors’] object is merely private or selfish; if it is detrimental to, or not promotive of, the public good, they have no adequate claim on the legislature for the privilege [of a character].” Old Jeffersonians like United States Supreme Court Justice Peter V. Daniel carried this attitude with them to the grave. Daniel provided in his will that his executor could convert his real property into stocks and bonds, “excluding the stocks or bonds of banks, railroads, or corporations or joint stock companies of any kind.”

While Virginia Republicans voiced extreme views, others were more influential in shaping public policy around two principal points. First, the people, through their representatives in the legislature, must be able to exercise some control over corporations. Second, creditors must have some claim against money invested or pledged by shareholders. Between these demands for public accountability on one hand and opportunity for investors on the other, public policy took from in the courts and statehouses. In 1819, two major decisions, both conventionally seen as triumphs for the private business corporation, harmonized these demands. John Marshall’s majority opinion in Dartmouth College v. Woodward (1819) is usually hailed as the great shield of the corporation, protecting it from arbitrary state interference. But the case was paradoxical, potentially restraining corporations as much as it did the state legislatures. Justice Story in his Dartmouth College concurrence conceded a point earlier established by the Massachusetts Supreme Judicial Court in Wales v. Stetson (1806):

A corporation cannot be controlled or destroyed by any subsequent statute, unless a power for that purpose be reserved to the legislature in the act of incorporation. . . . If the legislature mean to claim such and authority, it must be reserved in the grant [i.e., in the corporate charter.]

State legislatures did just that: both in special charters and in general incorporation acts they reserved power to amend or abrogate the charter, or imposed limitations on its powers. Moreover, corporations did not have innate powers; they could exercise only those powers expressly granted. Thus some public control was legitimated and preserved.

Similarly with the other great corporation case of 1819, Spear v. Grant, in which the Massachusetts Supreme Judicial Court established the principle of limited liability by holding that the debts of the corporation were not the debits of the individual investors Chief Justice Isaac Parker held that it was up to the legislature to establish the extend of a shareholder’s liability for the debts of the corporation he invested in, and even suggested that a remedy might be available against a shareholder who had pledged to buy, but not yet paid for, stock of a defunct corporation.

The Massachusetts legislature then went to the extreme of imposing unlimited liability on all shareholders of manufacturing corporations. These drastic measures, unique to the Bay State, effectively converted such corporations to partnerships for liability purposes. New York’s Chancellor James Kent sarcastically commented that “whether [this policy] be well or ill founded, it is admirably well calculated to cure all undue avidity for charters of incorporation.” Bowing to reality, Massachusetts began abandoning the rule in 1837.

States reserved control and accountability of corporations in other ways, too. They provided for the automatic expiration of a corporate charter after a specified term; prohibited fraud on creditors; and legislated detailed regulations governing corporate activities, either in charters or in general corporation statutes. When legislatures made extravagant concessions of immunity from taxation, indignant judges rebuked them.

Jacksonian Democrats enthusiastically promoted general incorporation statutes in the 1830s. Before the nineteenth century all corporations were created by a special act, the granting of a charter, by the kind of state legislature. The practice invited abuses, the most common being that friendly (or bribed) legislators would rush through corporate charters, sometimes in the closing days of legislative sessions, loaded with special concessions that escaped the attention of their colleagues. Often, in another practice Chief Justice Taney complained of in 1854, incorporators themselves drafter the corporate charter. Hence Jacksonians demanded general incorporation statutes: laws providing a model, pattern, or outline of a corporate charter. Hence Jacksonians demanded general incorporation statutes: laws providing a model, pattern, our outline of a corporate charter, and including some regulation of powers, stock ownership, rights of creditors, voting powers, and other routine aspects of corporate activity. Jacksonians hostile to monopolies and special privileges demanded open access to corporate charters for all who had money to invest. The experience of Wisconsin in drafting its first state constitution between 1846 and 1848 provides some examples. The Democratic Racine Advocate insisted that

If corporate powers are necessary, let them be made as limited as possible in extend, and as available as possible to all. Let general incorporation laws alone be passed, even for villages and cities, so that . . . .all may avail themselves of them.

A Racine County mass meeting adopted resolutions demanding

that all exclusive privileges and monopolies, whereby the few may be enabled to amass wealth at the expense of the many, are contrary to the spirit of a government of true equality. . . .[Corporations] should be regulated by general laws for the privileges of which none can be excluded who comply with their provisions.

Responding to such demands, the Wisconsin Constitution of 1848 forbade the charter of any banking corporations unless approved twice by popular referenda, and required that all other corporations be created only by “general laws” unless the legislature determined that the objects of a particular corporation could not be achieved under that general incorporation act. The same article also contained a clause common to constitutions and statutes of the period, providing that corporate charters, whether general or special, could be altered or repealed by the legislature at any time.

Special charters did not vanish after the Jacksonian period, but the democratization of investment opportunity at least freed legislatures from the task of considering every new corporate charter. Similar trends of the period abolished special legislative divorces, and, in Congress, special legislative hearings on every claim against the federal government.

One technological innovation, the railroad, quickly availed itself of the legal and financial opportunities opened up by the new private corporation. Railroads played a role second only to banks in the development of corporate law. They became so important to the nation’s economy that by midcentury railroad law constituted a legal realm unto itself, indicated first by the appearance of Angell on Carriers (18439) and then in 1858 by Redfield on Railways. Paraphrasing a eulogy to Chief Justice Lemuel Shaw, Leonard Levy has written that “the first puff of the [railroad] engine on the iron road announced a capitalist revolution in the common law.” The impact of the railroad on public law in America can be illustrated in three areas: the doctrine of eminent domain; legislative and administrative control of railroads; and the use of law to encourage investment. In all three areas, Shaw and the Supreme Judicial Court of Massachusetts “practically established the railroad law for the country.”

Eminent domain is a surprisingly modern legal concept. The phrase itself and the ideas it connotes did not appear before the nineteenth century. The power of government to take private property for public purposes had long been recognized by the common law, though, the classic illustrative case being the power to raze a building as a firestop during a conflagration. The milldam acts of the colonies, and of the territories and states after Independence, were a distinctly American application of this doctrine. These statutes reversed the common-law rule that flooding the land of another was actionable injury and the dam itself an abatable nuisance by enabling gristmill proprietors to dam a stream to provide a head of water to power their mill. The milldam acts gave the owner of flooded lands a right of statutory damages, but the early nineteenth century, this right was becoming one of diminishing value. Any loss beyond statutory damages was damnum absque iniuria, that convenient common-law concept meaning loss without actionable injury. But the theory sustaining the constitutionality of the milldam acts was compatible with common law. Gristmills were in the category of quasi-public businesses that operated under a mixture of privilege and control because they performed a vital public service and they monopolized some unique natural resource.

The milldam acts helped introduce the idea of eminent domain into the public laws of the states. Thus, when the new legal concept appeared in an 1831 railroad case decided by Chancellor Reuben Walworth of New York, it did not seem as alien, novel, or radical as it would appear to Daniel Webster and other worried conservatives in a few years. In Beekman v. Saratoga and Schenectady Railroad Co., Walworth upheld the practice of granting eminent domain power to the railroads. The legislature, he stated, had a right to exercise the power of eminent domain, or permit corporations to do so, “whenever the public interest requires it.” Though there must be a “benefit to the public,” Walworth defined this loosely as “even the expediency of the state.” Two requirements had to be satisfied. The state had to pay compensation, and the taking had to be according to procedures specified by law. As the price of this boon, the railroads had to recognize that the power given them was a “franchise” that the legislature could regulate in such things as fares and charges, routes, schedules and so on. Or, an Ohio judge stated in 1849, the railroad “must be made a public work for all purposes, not solely for that of appropriating the citizen’s land.”

Chief Justice Shaw adapted Walworth’s ideas to Massachusetts jurisprudence and extended it to manufacturing corporations, on the theory that economic development of any sort created public benefits great enough to transform the taking of private property in a “public use” as required by the Massachusetts Constitution of 1780. Flooding to create a head of water to power a factory was a public use because it was “an object of great public interest, especially since manufacturing has come to be one of the great public industrial pursuits of the commonwealth.”

In reality, land or other property involuntarily contributed to railroads and factories constituted a forced subsidy to private enterprise. To the extent that the real damage to the owner exceeded the amount of compensation, the private use of eminent domain was a crude and discriminatory form of taxation, falling only on those who happened to own property in the area of expansion. The contribution was especially galling in the case of railroads because of super-added damages inflicted on the landowners after the road was built, such as flooding by stagnant pools, wandering cattle being run down by trains, and fires set by sparks from engines.

The eminent domain power contained a potential for jurists to extend some measure of public regulatory authority over corporations. Judges could interpret regulatory authority over corporations. Judges could interpret the requirement of public purpose to classify a corporation enjoying eminent domain powers as a

public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community. . . . All property of the railroad is in trust for the public. The company have not the general power of disposal, incident to the absolute right of property; they are obliged to sue it in a particular manner, and for the accomplishment of a well defined public object.

Yet even in this 1842 case, Chief Justice Shaw used eminent domain doctrine to extend a tax immunity, not restrict it. Though Leonard Levy sees the origin of modern public utilities law in the linkage between eminent domain and regulatory power, the regulatory hand of the state lay lightly on railroad corporations before the Civil War. The experience of Ohio and New York suggests that the real beginning of regulatory law derive rather from the administrative bodies that administered canals. The canal boards of both states had extensive regulatory powers, including the power to set rates, and both exercised these powers vigorously. In contrast, in Ohio the regulation of railroad rates was nominal, while in New York it was effectively nonexistent.

Meanwhile, having served its purpose as a justification for granting legislative powers to private, profitmaking enterprises, eminent domain and its American source, the milldam acts were falling into disfavor – or, as Morton Horowitz suggests, undergoing a transformation that dissipated their potential for redistributing wealth in America in ways harmful to the newly triumphant corporate-capitalist elite.

Although the United States Supreme Court in 1848 upheld the constitutionality of the state’s eminent domain power when used to condemn the charter of a bridge, state courts began to voice reservations about the milldam acts and eminent domain. Judge Augustus C. Hand of the New York Supreme Court, in an 1848 opinion inconsistent with Chancellor Walworth’s Beekman decision, flatly rejected the use of eminent domain for milldams of any sort. The Wisconsin Supreme Court sustained the state’s milldam act only on the basis of stare decisis, and stated that were it a case of first impression, the court would hold the statute unconstitutional. Finally, after the Civil War, Chief Judge Thomas M. Cooley of the Michigan Supreme Court struck down a statute authorizing a milldam for factories, largely on the grounds that falling water used as a power source had become technologically obsolete with the introduction of the stationary steam engine. He was careful, however, to except railroads from his holding, thus saving the fruit of the doctrine of eminent domain while throwing away its obsolete husk, the milldam acts.

The controversy over railroads’ eminent domain powers was symptomatic of broader public dissatisfaction with railroads and their performance. Railroads, like other corporations before the 1840s, were chartered by special act. But the pressures that led to general incorporation laws were more intense for railroad corporations. Dissatisfied consumers, on one hand, complained of high fares, poor service, bribery and corruption, rate discrimination, and monopoly – the same catalog of grievances that later stirred the Grangers and the Populists. At the same time, corporate promoters, fearing that the odor of monopoly and special privilege threatened corporations generally and might lead to “an ill-directed zeal for the disallowment of any corporate grants,” supported the Jacksonian demand for general incorporation laws.

These pressures produced a new article on “Corporations” in the New York Constitution of 1846 that prohibited special corporate charters unless the objects of the corporations could not be attained under a general incorporation statute. Four years later, the New York legislature enacted the first “Free Railroad Law,” a general incorporation act for railroads. Though the act reserved to the legislature some power to control rates and other details of railroad operation, it created a climate of laissez-faire for railroads. Any twenty-five persons, merely by filing articles of incorporation, could automatically become incorporated, get the power of eminent domain, and run lines anywhere they wished.

Railroad laisses-faire was later partially offset by administrative regulation of railroads, which began in New England and was confined to that region until after the Civil War. The first of the new railroad commissions, The Rhode Island Board of Railroad Commissioners, was founded in 1839 to ensure access to all citizens to railroad services and to stop collusion between railroads and steamship lines. New Hampshire’s came into being as a rubber stamp that enabled railroads to condemn lands, a privilege denied them under eminent domain law in the Granite State. Connecticut’s was established to enforce railroad safety measures. The earliest commissions did not have full-time salaried staffs and lacked effective coercive authority. Though Massachusetts did not establish a permanent railroad commission, from time to time it set up special commissions, usually for rate-setting purposes and with investigatory powers. The Supreme Judicial Court upheld their powers to set rates impose schedules, and perform other wide-ranging administrative tasks on the grounds that they exercised a discretion, based on expertise, that courts would not question as long as they performed within the area of their statutory authority. Railroad commissions did not exist elsewhere, except for a short-lived experiment in New York.

Another casualty of the era was the “mixed-enterprise” system, by which states, municipalities, and countries provided financial aid to encourage the construction of canals and railroads. Stimulated by the success of the Erie Canal in the 1820s, the seaboard states that had passable routes to the trans-Appalachian West eagerly went in for building canals and railroads. But the Depression of 1837 and another exactly twenty years later, cooled the ardor of the states for mixed enterprise. In its 1846 Constitution, New York forbade state aid to private corporations and prohibited the state from borrowing more than one million dollars without referendum approval. The western states of Illinois (1848), Wisconsin (1849), Michigan (1850), and Ohio (1851), soured by canal investments that did not approach the Erie Canal’s success, prohibited state aid to private companies and prohibited borrowing for public improvements projects. Maryland followed suit in 1851 after the state-assisted Chesapeake and Ohio Canal was eclipsed by the Baltimore-supported Baltimore and Ohio Railroad. In Pennsylvania, opponents of local aid to railroad companies challenged the constitutionality of the entire mixed enterprise system. In Sharpless v. Mayor (1853), Chief Judge Jeremiah S. Black repulsed this challenge, but opponents of public investment had the last word by sponsoring a constitutional amendment in 1857 that flatly forbade both state and local investment, which a popular referendum ratified by a 9-1 margin. The state thereupon sold its engineering hybrid, the Main Line, a system of railroads and canals linking Philadelphia and Pittsburg, to the Pennsylvania Railroad.

Judge-made law tipped the economic scales in favor of railroad investors in their conflicts with workers and customers. By the Civil War, railroad and other industries used law to pass off their operating and construction costs onto workers and consumers.

In preindustrial economies in the West, excepting areas of traditionally unfree labor organization (the mines, the military, plantation agriculture, and merchant shipping), the relationship between employer and employee was characterized by something close to a one-to-one ratio, by a somewhat flexible work regime and schedule, by guild and apprenticeship systems having some paternalistic features, by the worker’s ownership of his tools, by low technology, and by energy derived from wood and human or animal labor. Industrialization changed each of those features, invariably to the disadvantage of labor. Every industrializing economy, whether feudal, capitalist, or socialist, has accumulated savings at the expense of labor, through paying low wages and by dumping social costs on the working force, their communities, or the larger society. The American experience in the nineteenth century was no exception. The work forces in factories found themselves massed in uncomfortable and dangerous workplaces, regimented and disciplined in unpleasant ways, underpaid and forced to live in squalor.

Judges who wanted to promote the accumulation of capital devised ways to help entrepreneurs pass the social costs of their businesses on to others, thereby saving funds that could then be available for investment. The classic legal examples of passing on costs in this way were the fellow-servant rule, and the doctrine of assumption of risk, invented by Lemuel Shaw in 1842. Both exempted an employer from liability to one of his workers injured by the negligence of a co-worker. They permitted investors to fob off the costs of industrial accidents only workers or their widows and orphans. In Farwell v. Boston and Worcester Railroad (1842), Shaw held on two grounds that a railroad was not liable for injury to an engineer caused by the negligence of a switchman. First, a person “takes upon himself the natural and ordinary risks and perils” of a job when he hires on. Second, an employee has two options when he observes that a fellow employee is negligent: he can warn the employer, or he can quit.

Shaw’s Farwell opinion was an early example of legal “formalism”: a state of mind in which a judge worked out rules of law abstracted from social reality, deduced by logical categories that his from the judge himself the real policy considerations implicit in his opinion. Shaw envisioned a world of one-to-one employment relationships characteristic of a seventeenth-century master and journeyman but archaic in the Industrial Revolution when the individual employees of large corporations were poor and powerless. Farwell, an immediate triumph in American and in England, delayed the enactment of workmen’s compensation acts until the eve of World War I by casting over them the vague aura of unconstitutionality.

So much for workers. Consumers could also be made to bear the costs of the Industrial Revolution, but in subtler, more technical, less drastic ways. At common law, a common carrier, like a railroad, had a high degree of liability for goods entrusted to it for shipment. It was virtually an insurer (that is, responsible for loss even if that loss occurred without fault on its part); only war or an act of God were good defenses. Naturally, railroads sought to evade this responsibility either by general notice, such as signs on walls that limited their liability for baggage, or by special notice, such as a disclaimer printed on a ticket or a bill of lading. Judges were at first hostile to such efforts and held the railroads to absolute liability. But the Commentaries on the Law of Bailments, stated that carriers could contract out of liability for goods, except for that based on “gross negligence and fraud.” By 1847, his Supreme Court colleague Justice Samuel Nelson confirmed this trend when he reformulated the rule to hold that any carrier could contract out of common-carrier liability by “express stipulation,” written or oral, and could thus avoid responsibility for negligence on its part that was less than gross. In this way, railroads were able to pass on some costs of doing business to their customers.

American public law in its golden age favored entrepreneurial risk-taking in indirect ways as well. Here, too, railroads were a primary beneficiary of judges’ concern to protect capital investments. Concurrent with the Industrial Revolution in America, Anglo-American judges created an entire new body of law: torts, the law of civil wrongs. They shaped its doctrines to accommodate the needs of corporate capitalism and a market economy. The law of torts encouraged firms to pass on costs to others and promoted the rationalization of economic behavior.

Primitive and early modern law concerned with distributing the burden of civil wrongs tended toward absolute liability: the plaintiff had only to show that his injury was caused by the act of the defendant. Questions of fault were secondary, if relevant at all. Such premises were inappropriate to a capital-scarce economy during a period of intensive industrialization. As the New York Court of Appeals indignantly suggested, absolute liability would have forced railroads to compensate everyone the injured. In Ryan v. New York Central Railroad (1866), a case involving negligent destruction of plaintiff’s building 130 feet distant from defendant railroad, the court proposed an alternative policy. In denying recovery, the courts held that “no private fortune would be adequate” to bear the costs of the railroad’s negligent conduct in the case of a spreading fire caused by an engine’s sparks. The burden of loss, in the name of sustaining a “civilized society,” the court held, had to be shifted to the suffers. “In a commercial country, each man, to some extent, runs the hazard of his neighbor’s conduct, and each, by insurance against such hazards, is enabled to obtain a reasonable security against loss.” The court did not consider whether individuals could better bear catastrophic loss than corporations, nor did it question its assumptions that the costs of industrialization should more appropriately fall on the victim rather than the large and wealthy cause of the injury. The Farwell case was the product of the same assumptions.

Chief Justice Shaw was virtually the creator of this new body of tort law, and its early development reflected his policy assumptions. The first significant tort case in America, Brown v. Kendall (1850), had immeasurable consequences. In a suit for an unintended injury (defendant had accidentally struck plaintiff while trying to break up a dogfight), Shaw held that plaintiff must “show either that the [defendant’s] intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable.” Shaw held the defendant to the standard of “ordinary care,” which “means that kind and degree of care, which prudent and caution men would use, such as is required by the exigency of the case, and such as is necessary to guard against probably danger.” Under these seemingly reasonable and obvious propositions, however, there lay a movement of enormous significance in public law.

Liability was to be based only on fault; in cases where the injury was nonintentional, fault could be imputed only by showing negligence. Negligence depended on a standard of ordinary care, determined by judges. Thus a whole new field of law was born. Tort law ever since has been dominated by concepts of negligence and fault. Seemingly so reasonable, so unarguable a moral judgment, Shaw’s no-fault-no-liability equation nevertheless rationalized economic decision making indispensable to capitalism.

In Brown v. Kendall, Shaw innovated another doctrine, contributory negligence, a doctrine that would prove almost as important as the ordinary-care standard in denying recovery to victims of industrialization. Though defendant was negligent, “if the plaintiff was also chargeable with negligence,” there could be no recovery unless plaintiff could show that “his own negligence did not contribute as an efficient cause to produce” the injury. Or, to put it the way railroad attorneys immediately construed the rule, if defendant can show some degree of plaintiff’s contributory negligence, defendant is not liable, no matter how culpable or how great the share of its own negligence in the ratio.

Shaw’s reliance on causality suggested another element that favored corporate defendants: proximate cause. Plaintiff had to show that defendant’s act was the proximate, or immediate, cause of the injury. If the act of someone else intervened to deflect injury, as it were, toward plaintiff, defendant might escape liability. Yet another useful doctrine for defendants antedated the new tort law: the principle of the nonsurvival of actions for death by wrongful act. At common law, a cause of action for acts causing the death of a potential plaintiff died with him; his survivors (in the case of industrial workers, usually widows and orphans) could not recover for his death.

The pro-defendant bias of early American tort law reflects a determination to protect risky investments in new technologies, as well as two legal developments then undergoing rapid change: the extend of jury discretion and the growth of insurance. One of the consequences of proving plaintiff’s contributory negligence is that the case does not go to the jury; the judge dismisses it. Defending this result, Judge Seward Barcolo of the New York Supreme Court explained in 1853 that

in certain controversies between the weak and the strong – between a humble individual and a gigantic corporation, the sympathies of the human mind naturally, honestly and generously run to the assistance and support of the feeble and apparently oppressed; and that compassion will sometimes exercise over the deliberations of the jury, an influence which, however honorable to them as philanthropists, is wholly inconsistent with the principles of law and the ends of justice.

A judge could assume that “the principles of law and the ends of justice” were incompatible with ”compassion” for the victims of the Industrial Revolution, because judges and legal commentators stress that the morality of law is “conventional.” Nathan Dane, America’s Blackstone and the patron of Joseph Story at the Harvard Law School, explained that “the law of the land and morality are the same” only in “some special cases,” but separate “when policy, or arbitrary rues must also be regarded.” “Virtue alone is the subject of morality, but law has, often, for its object, the peace of society, and what is practicable.”

Insurance was a different problem. At common law before the nineteenth century, an individual could not insure against his own negligence. This rule tended to support the absolute liability of carriers by suggesting that a carrier could not contract out of responsibility for its own negligence. When marine insurance split off from the larger, emergent subject of general insurance around 1830, and nonmarine insurance expanded to cover some risks of industrialization in a national market economy, judges accepted the idea that the corporations could insure against damage caused by the negligence of their employees. Until then, risk could not be financially spread or actuarially anticipated. But, as the Ryan case suggests, even when the concept of insurability became familiar to judges, the plight of plaintiffs was not necessarily eased.

Legislatures moderated the severity of common-law tort rules almost as quickly as judges created them. States, following the lead of Lord Campbell’s Act in England, enacted Wrongful Death Acts that either reversed the common-law rule of nonsurvival of wrongful death actions or created some statutory right in survivors – usually, however, with a ceiling on liability. Statutory liability, sometimes approaching the stringency of primitive-law absolute liability, derived from statutes that imposed certain specific safety requirements on railroads and made them liable for all damages resulting from accidents where plaintiff could show noncompliance with the statutory requirement.

The second great body of law created by antebellum judges, contract, also reflected their developmental, entrepreneurial bias. Contract law was not wholly new in 1830; it had been evolving slowly over the previous four centuries, chiefly in judge-made modifications of some half-dozen forms of action at common law. But as an independent, substantive body of law, contract scarcely existed before the nineteenth century. Such law as there was consisted of one venerable piece of legislation, the Statute of Frauds (1677), adopted in all American jurisdictions, which requires certain kinds of contracts to be in writing, together with a few scattered cases from the colonial and early national courts. These cases tended to emphasize equitable considerations in the adjudications of disputes. They looked to the fairness of the transaction, left much discretion to jury verdicts to achieve fair results as measured by community standards, and emphasized the remedies of restitution and specific performance. Contract in the preindustrial era was also closely tied to concepts of property; it generally involved the transfer of title to tangible, extant property.

All these characteristics were eclipsed by the emergence of modern contract law serving an industrialized society oriented to a national market. In a constitutional sense, the nineteenth century was “the golden age of the law of contracts,” as Lawrence Friedman has called it. The age began with Fletcher v. Peck (1810), when the United States Supreme Court held that state legislative acts were contracts for purposes of the contracts clause of the United States Constitution, and extended to 1897, when the same Court articulated the doctrine of “liberty of contract” as yet another limitation on state legislative power in the case of Allgeyer v. Louisiana. In between, in all the states, the common law of contract flourished, as judges ambitiously grasped policymaking power in the regulation of the economy.

The formation of a national and an international market created a large network of impersonal economic relationships, in which objectivity, predictability, and reliability became prime virtues. Speculative trading in commodities futures began around 1800, and no traditional categories of the law of personal property could regulate that new economic activity. Contract law in the mid-nineteenth century therefore was transformed from the inchoate muddle of Blackstone’s few pages on the subject to an overarching jurisprudential theory influential enough to establish itself by the end of the century as one of the basic fields of law and to remake American public and constitutional law in the image of its jurisprudential assumptions.

The new contract law was based on a set of assumptions called the “will theory.” The essence of a contract was a mutually agreed upon assent to an economic relationship. The law had no business inquiring into the fairness of an exchange; its function was to determine whether there had been “a meeting of the minds.” “Every contract,” wrote William Wetmore Story, son of Justice Joseph Story and author of the first comprehensive treatise on contracts that reflected the new jurisprudential assumptions of an impersonal market economy, “is founded upon the mutual agreements of the parties.” Even an implied contract, where the law creates a contractual relationship, is based on a presumed assent of the parties. The will theory necessarily presumed that both parties to the transaction stood upon a footing of equality vis-á-vis each other, and that the market price was a measure of each one’s estimate of the worth of the relationship to himself, which the law would not second guess. Under such assumptions, no contract would be exploitative; if it were, by definition, the exploited party would have not entered into it.“ Modern contract law was thus born staunchly proclaiming that all men are equal because all measures of in equality are illusory.” Chancellor Kent displayed a dogmatic hostility to the ideal of equality:

The legislature has no right to limit the extent of the acquisition of property . . . .A state of equality as to property is impossible to be maintained, for it is against the laws of our own nature; and if it could be reduced to practice, it would place the human race in a state of tasteless enjoyment and stupid inactivity. . . . Liberty depends essentially upon the structure of government, the administration of justice, and the intelligence of the people and it has very little concern with equality of property and frugality of living.

With the triumph of the will theory, the elements of modern contract law fell into place; offer and acceptance (which were the formal and external manifestations of the parties’ wills); “ consideration,” that mysterious quid pro quo, but now increasingly an evidentiary requirement used to prove the meeting of the minds, rather than to assure fair, nonopprobrious dealings. Judges began to squint suspiciously at old equitable elements of contract. The old doctrine of “a sound price warrants a sound commodity” gave way to the new and pitiless doctrine of caveat emptor: let the buyer beware. The result of the divergence between the law of contracts and considerations of equity and the community sense of fairness was, in Morton Horwitz’s terms, “a great intellectual divide between a system of formal rules – which judges and treatise writers managed to identify exclusively with ‘the rule of law ‘ itself.”

But as judges were creating these new domains of common law, legal reformers were subjecting the entire legal system to criticism, and demanding its reform. Hostility to the common law was not altogether new in American society. Earlier disputes over the reception of the English common law had carried over into the Jacksonian period. But in the 1830s, various reform movements attacked the conservative bar and the common-law legal systems it administered, or sought to use law to achieve social reforms that the bar mistrusted. These efforts coalesced in the movement to codify the common law.

By the Jacksonian period, the common law had been ‘”received” in every American jurisdiction. Through constitutional provision, statue, and judicial decision, the customary law of England expounded in the decisions of the royal courts before American Independence was adopted as law in America unless it was inconsistent with American circumstances or was specifically declared inapplicable by statute. But the reception of the common law did not quiet controversy over adopting judge-made law. On the contrary; republican ideological emphasis on the role of the legislature, Jeffersonian hostility to the decisions of the Marshall Courts, and democratic insistence on popular sovereignty all combined to make the role of judges suspect, especially when they thwarted popular of legislative will by holding a statute unconstitutional. Hence attacks on the common law were fueled not only by Anglophobia but also suspicions about the role of courts in a democracy.

The talented Irish-American lawyer William Sampson demanded that the “stubborn forms [of common law] be taught to bend to the convenience and exigencies of the people for whose use it subsists.” He heaped ridicule on the common law: it was

A mysterious essence like the Dalai Lama, not to be seen or visited in open day; of most indefinite antiquity; sometimes in the decrepitude of age, and sometimes in the bloom of infancy, yet still the same that was, and was to be, and evermore to sit cross-legged and motionless upon its antique altar, for no use or purpose, but to be praised and worshipped by ignorant and superstitious votaries. Its attributes were all negative, its properties all enigmatical, and its name a metaphor. Taken in many senses, it had truly none. It was oral tradition opposed to written law; it was written law, but presuming the writing lost; it was that of whose origin there was no records. It was opposed to statute law. To civil law, to ecclesiastical law, to military law. To maritime and mercantile law. To the law of nations; but most frequently contrasted with equity itself. It was common sense, but of an artificial kind, such as is not the sense of any common man.

Reflecting the philosophical attitudes of Jeremy Bentham as much as the antijudicial bias of Jacksonian Democrats, the prominent Massachusetts Jacksonian attorney and political leader Robert Rantoul, in his widely noted “Oration at Scituate” (1836), summed up the attack on the common law. “Statutes, enacted by the legislature, speak the public voice”; but judge-made law “usurps legislative power.” Therefore, Rantoul concluded,” the whole body of the law must be codified.”

The demand for codification sprang from several sources. Many of the men who administered the law in America, especially justices of the peace and law-enforcement officials, were not lawyers – none of the judges of the Rhode Island Supreme Court was a lawyer, for example. These laymen needed a clear and concise guide to what the law was. Law reports had begun to proliferate, and many judges and lawyers, including Joseph Story, looked uneasily over their shoulder at the increasingly indigestible mass of law being accumulated in America. Some areas of law, such as the law of commercial paper, were inherently suited to being codified, while others—civil procedure—were moss-covered with old and meaningless intricacy. Moreover, codes were not a novelty in America. The earliest laws of New England and New York were codes; all the colonies codified some parts of their laws in the eighteenth century; and Louisiana, because of its Franco-Spanish civil law heritage, blended code and common law in a unique legal environment.

Though he was appalled at the anti-common-law, antilawyer, antijudicial sentiments of Sampson and Rantoul, Story recognized the value of a limited and controlled codification for some areas of law, and promoted moderate codification in the twenties and thirties. Seeing law as a science, Story believed that it could be reduced to basic principles in some fields of law and that these principles could be collected in printed form and enacted as a code. In 1837, as the head of a commission appointed to advise the General Court on the feasibility of codifying Massachusetts law, Story cautiously recommended three codes: the “general principles” of property, contracts and personal rights; the entire criminal law; and the entire law of evidence.

Story’s limited proposal was overtaken by a crusade for more thoroughgoing codification lead by the New York lawyer David Dudley Field. The brother of Stephen J. Field, a future justice of the United States Supreme Court, Field was a prominent constitutional lawyer, later participating as counsel in much of the post-Civil War constitutional litigation. But his enduring fame rest on the codes he drafted and promoted, largely without success, for New York: a criminal code, a procedural code, and a comprehensive civil code. Basing his approach on a judicial commonplace of the time – the function of judges is to declare the law, not to make it – Field hoped that the legislature, by adopting his codes, would “render the existing law as accessible and as intelligible as we can, . . . . to cast aside known rules which are obsolete, to correct those which are burdensome, or unsuitable to present circumstances, to reject anomalous or ill-considered cases, to bring the different branches in to a more perfect order and agreement.”

Field and other enthusiasts for codification believed that because law was a science, its elements could be categorized and classified according to its central principles, which were supposedly compatible with the legal profession’s interests deriving from technology and growth. Both principles and technical details could then be taught more systematically to law students, and be available in convenient form to practicing lawyers and to judges. Ill-educated practitioners would have the benefit of rationalized, standard sources. Instead of the increasing hodgepodge of case reports, recorded according to no agreed style, more uniform reporting would give trial lawyers a precision that clients and judges would appreciate.

But despite these advantages to the bar, codification made little progress in the nineteenth century. Field’s procedural code was adopted in New York and elsewhere, and “code pleasing,” as it came to be called, replaced the perverse, antiquated mystery of common-law pleading. But Field’s own state, New York, rejected his substantive law codes. Only a few states, mostly in the West, adopted them after the Civil War. Resistance to the codes was led by conservative leaders of the bar, who confused Field and his codes with more radical attacks on the law itself. The conservative elite of American lawyers identified the “rule of law” with their own clients’ interests and ambitions, indiscriminately condemning as anarchic all demands for reform, attacks on lawyers, and criticisms of capitalism.

Rufus Choate lyricized about “the sacred sentiments of obedience and reverence and justice, of the supremacy of the calm and the grand reason of the law over the fitful will of the individual and the crowd.” He denied that law was the product of human will – a convenient fiction useful to the hegemony of the elite—least of all was it, or could it be, the product of the will of a majority. He hoped to “raise the law itself, in the professional and in the general idea, almost up to the nature of an independent, superior reason, in one sense out of the people, and in one sense above them.” James C. Carter, a New York lawyer and American Bar Association president, dismissed the does as nothing more than Field’s effort to gratify his own ambition or vanity, and condemned codification per se as something borrowed from the jurisprudence of “despotic nations.”

Yet in one of history’s ironies at the time of Field’s death in 1894 codification stood on the threshold of its great twentieth-century triumphs, thanks in some measure to the conservative elite who opposed the sweeping codes that Field proposed. Beginning with the creation of the National Conference of Commissioners on Uniform State Laws (1892), spurred by approval of the Uniform Negotiable Instruments Act (1896), cresting to early success with the Uniform Sales Act (1906), and then sweeping the entire field of commercial law with the Uniform Commercial Code (adopted in all American jurisdictions between 1953 and 1970), the codification movement eventually triumphed, though in a way different from what Field had envisioned.

Other reform movements impinged on the public law less directly. Nevertheless, the common law and the legal profession were affected at numerous points by the gaudy swirl of meliorist and radical movements of the 1830s. Three are illustrative: Labor organization, penal reform, and women’s rights.

Workers were not entirely passive in the face of entrepreneurs’ efforts to accumulate investment capital at the expense of labor. Early in the nineteenth century, journeymen artisans began to experiment with primitive forms of labor organization. At first, reflecting their lingering semientrepreneurial status, workers’ associations resembled businessmen’s price-fixing combinations. But as workers sank in status from journeymen to wage earners, their labor organizations took on noticeably modern characteristics, most particularly in pitting worker against employer. Employers and judges reacted predictably, beginning with the famous Philadelphia and New York Cordwainer’s Cases (1806-10), declaring unions to be criminal conspiracies. Their attitudes were best reflected in an opinion of New York’s Chief Justice John Savage in People v. Fisher (1935). Holding that workers’ organizations violated New York’s conspiracies statute, Savage claimed that workers’ “extravagant demands for wages” would interfere with the beneficent, natural operation of the free market. “It is important to the best interests of society that the price of labor be left to regulate itself, or rather, be limited by the demand for it.”

In such a climate of opinion, the decision of Chief Justice Shaw in Commonwealth v. Hunt (1842) appears almost revolutionary. Overturning a conviction for the common-law crime of conspiracy, Shaw applied the traditional means-ends test for conspiracies and held that labor organization for purposes of establishing what is now called a closed shop was not in itself illegal, nor were the means (collective refusal to work). While Commonwealth v. Hunt did not relieve embryonic unions from all legal harassment, it did lift the stigma fixed on them since 1806 that suggested that workers’ concerted efforts were criminal.

The boundaries of the criminal law contracted slightly in the Jacksonian period. Many states revised the substantive law of crimes, mostly by modifying the severe penalties left over from the eighteenth century. The scope of common-law crimes shrank, as the criminal law was reduced to written form. By the Civil War, all states had abolished imprisonment for debt. None of these reforms was especially controversial.

The reform of postconviction penal systems was another matter. Two reform efforts provoked controversy: the abolition of capital punishment and the improvement of prisons. Edward Livingston, a transplanted New Yorker who drew up Louisiana’s Civil Code of 1825, was the first prominent nineteenth-century leader of the movement to do away with the death penalty. Like opponents ever since, he stressed that the death penalty was no deterrent to crime. Rather, he urged legislators, “study the passions which first suggested the offence, and apply your punishment to mortify and counteract them.” This theme was echoed by some Jacksonian Democratic reformers, chief among them Robert Rantoul of Massachusetts and John L. O’ Sullivan of New York.

They enjoyed limited success: Michigan abolished the death penalty in 1847, Rhode Island in 1852, and Wisconsin in 1853. But the movement provoked a vigorous and popular countermovement to retain capital punishment, led chiefly by conservative clergymen who considered the death penalty sanctioned by God. An 1844 referendum in New Hampshire resulted in a vote of two to one in favor of retaining the death penalty, and a spectacular murder trial and subsequent execution of Harvard Professor John Webster in Massachusetts provided opponents with an easily understood dramatic event that could be turned to good propaganda use. After the Wisconsin success, the movement was eclipsed during the war, and languished afterward.

Prison reform was equally unpopular. New York pioneered the “Auburn system,” named after the state prison in the town, in which inmates were permitted to work during the day and confined to separate cells at night. New York also introduced the idea of a separate system for housing and treating juvenile offenders, the House of Refuge, in 1825. In the following decade, prison reform was an issue taken up by reformers in both Europe and America—it was the original reason for Alexis de Tocqueville’s mission to American in 1832. But prison reform butted up against two hard realities: one was costs; the other was the widely popular notion that convicts are sent to prison to be punished, not coddled. Effective systems of penal reform were expensive because they required new buildings, or at least extensive remodeling, and expanded staff, including professionals. As a result, the Auburn idea lost its dynamic and most prisons remained places of horror. Local lockups were even worse.

If the lot of convicts in American society remained unchanged, the place of women was beginning to undergo rapid transition. The influences of this social movement and law were reciprocal. Women benefitted from a jurisprudential transformation, first identified by Sir Henry Maine, that was redirecting Western law in the nineteenth century. In his classic Ancient Law (1861) he suggested that as a legal system matures, “the movement of the progressive societies has hitherto been a movement from Status to Contract.” From being determined by birth, class, sex, race, or pedigree, a person’s place in society was coming to be based on relationships based on will and therefore to some extent on ability and initiative. J. Willard Hurst has emphasized that the first half of the nineteenth century sought to promote the release of individuals’ creative energy by protecting their decision making capacity and expanding the scope of decisions they could make. Artificial impediments on human endeavor ran against the current of the nineteenth century.

Women benefitted from this shift of status to contract. At the beginning of the nineteenth century, their legal status, when married, was comparable in the eyes of the law to that of slaves, convicts children and lunatics. Women had little legal capacity. As Chancellor Kent put it: “the husband and wife are regarded [by the law] as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union.” With unconscious irony, he went on to observe that the wife’s legal “dependence” on her husband “furnishes powerful motives to the promotion of harmony and peaceful cohabitation in married life.” But this debased legal status was culturally and economically anomalous. Women ran plantations and businesses, organized reformist groups, and constituted a significant market for ideas and products, as indicated by the commercial success of women’s magazines like Godey’s Lady’s Book. A southern frontier jurisdiction, Mississippi, enacted the first statute recognizing women’s legal capacity in 1839. The forms of law simply followed economic and social reality in a state where many farms and plantations were run by women. By 1850, about half the states had enacted Married Women’s Property Acts, giving married women some measure of control over their own property. To the extent that this divested husbands of extant rights in their wives’ property, judges caught up in higher-law enthusiasm balked. Judge Barcolo of the New York Supreme Court lamented that “the ancient muniments, hitherto deemed ‘essential to the inviolability of the nuptial contract and to the maintenance of the institution of marriage’ are crumbling and falling before the batteries of modern reformers. The old landmarks are being removed. The principles of former times are fast receding from view.” But such attitudes did not deflect the irresistible triumph of contract as the determinant of human relations.

Divorce was another issue affecting the status of women. In the colonial period, divorce was rare and, when granted, came only by legislative act. After Independence a few of the states began to experiment with judicial divorce. Yet legislative divorce did not disappear. Either from a sense of power or to provide and element of flexibility that general divorce did not, law makers sought to retain some divorce-granting power despite the work involved for them. But Chancellor Kent voiced the suspicion that a legislative divorce might not be valid in any state except the one where granted, the full-faith-and-credit clause of the federal Constitution’s Article IV, section 1, notwithstanding, and legislative divorce became increasingly unpopular and suspect.

General divorce laws raised the question of what grounds should be adequate for divorce. The “strict” states, led by New York, prohibited divorced for any reason but adultery. The “liberal” states experimented with other grounds: desertion, pregnancy at marriage by another, drunkenness, cruelty. The legal remedy of annulment, based on the theory that the marriage was invalid from the beginning, persisted, but divorce a mensa et thoro (‘From table and bed”), a legal separation prohibiting either partner from remarrying, slowly fell into disuse.

The movement to liberalize divorce provoked a debate between those who feared that freer divorce would encourage orgies of lewdness and those critical of the harshness or hypocrisy of strict laws. Chancellor Kent proposed a solution that found little official support. He suggested that it might be desirable to legalize the double standard, so that only the husband could get a divorce on the grounds of his wife’s adultery. He explained that “the violation of the marriage vow, on the part of the wife, is the most mischievous, and the prosecution out to be confined to the offense on her part.” In the variety of grounds, the states differed among themselves, from South Carolina, which into the Jacksonian period prided itself on never having granted either a legislative or a judicial divorce, to Indiana, which in the same period was something of a quickie divorce haven having liberal laws and a relatively brief residence requirement. But supporters of strict grounds slowly had to give way as the conviction spread that, in Lawrence Friedman’s words, “divorceless state is not a state without adultery, prostitution, fornication. It is, more likely than not, a place sharply divided between official law and unofficial behavior. A country with rare or expensive divorce is a country with two sets of divorce laws, one for the rich, and one for the poor.”

Despite some progress in the matters of property rights and divorce, women were still subjected to many forms of discrimination before the war. They could not vote, legislators often rejected their legislative petitions with vulgarity and contempt, they were excluded

from the professions of law, medicine, and clergy, and inequalities in legal capacity lingered. The dissatisfaction of less compromising women’s rights advocates like Elizabeth Cady Stanton produced the famous Seneca Falls Declaration (1848) which, using the Declaration of Independence as a form, cataloged the wrongs to America:

[man] has never permitted her to exercise her inalienable right to the elective franchise. He has made her, if married, in the eye of the law, civilly dead. He has taken from her all right in property, even to the wages she earns.

“Resolved,” they concluded, “That woman is man’s equal.” But equality before the law for American women still lay a long way off.

The public law of Jacksonian America played a central role in assigning rights and duties, privileges and handicaps, among the varying groups of American society. One dominant trend appeared as midcentury approached: law, especially judge-made law, promoted the interests of investors in order to encourage the accumulations of investment capital. It developed the new device of the corporation and adapted its forms to the needs of railroad, manufacturing, and insurance interests. But all this took place in a heterogeneous Union, and the public law of the states sometimes reflected that heterogeneity in an undesirable diversity, clogging the national market and the federal system that the law sought to protect. As the Union matured, the need for a central authority to reconcile American public law became ever more apparent. The United States Supreme Court under John Marshall had begun to do that. Many observers of the Court wondered whether it could expand that role under the direction of its new chief, the Jacksonian Democrat Roger B. Taney.

Kermit L Hall, “Mostly Anchor and Little Sail: The Evolution of American State Constitutions”

The California Constitution of 1849

David J. Langum, Law and Community on the Mexican California Frontier

Christian G. Fritz, “More Than Shreds and Patches: California’s First Bill of Rights”

Cal. Civ. Code sec. 22.2 (adopting the common law)

22.2. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.

The California Constitution of 1879

Harry Scheiber, “Race, Radicalism, and Reform”

Christian G. Fritz, “The American Constitutional Tradition Revisited”

Christian G. Fritz, “The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West,” 25 Rutgers L.J. 945 (1994)

Republicanism, the Promise of Democracy, and the 1878 California Constitutional Convention

Closely linked to discussions of the nature of conventions and the implications of popular sovereignty were competing visions of the implications of republicanism and the promise of democracy. Delegates who viewed the capacity for change in positive terms tended to regard conventions as an expression of popular sovereignty. As such, they accorded conventions powers and characteristics that followed from that status. On the other hand, those who chiefly valued stability saw conventions as potentially dangerous and revolutionary. Such delegates came to believe that conventions were limited by preexisting procedures and the constitutional provisions that called them into being.

An incident raising these far-reaching questions involved restrictions on delegate selection in California’s 1878 convention. The issue was whether an elected delegate, also a district court judge, could participate given a provision of the 1849 constitution which made such judges “ineligible to any other office than a judicial office during their term.”178 At one level, debate focused on interpreting the word “office” and the applicability of the constitutional provision,179 but the issue also provoked a fascinating discussion of whether constitutional conventions were, in some sense, revolutionary.180 The deeper issue entailed the relevance, impact, and authority of a preexisting constitutional provision on a later constitutional convention. During the debate the question widened to whether the convention manifested popular sovereignty and was therefore beyond the control of a legislature, an enabling act, or even a preexisting constitution.181 On the other hand, were constitutional conventions constrained to act in accordance with provisions that triggered their existence?182

Since establishing the credentials of delegates required a resolution before the convention began its work, this abstract question became the first major issue. Eventually, the convention seated the challenged delegate.183 The controversy posed a rare instance in the course of constitution-making when such theoretical questions about the power and role of conventions were explicitly raised.

The convention approached this issue in a time-honored way: it appointed a special committee. The committee rendered a majority report recommending seating the delegate as well as a dissenting minority report. These two reports framed the ensuing debate. The majority report interpreted the intent of the constitutional provision as preventing judges from using their position to advance themselves in the executive or legislative departments. As such, the provision concerned the operation of the government created by the 1849 constitution and did not “anticipate what should be done under a succeeding Constitution.”184 Therefore, the majority report rejected as an overly narrow and literal interpretation a finding that membership in the present convention constituted an “office.”

The majority report emphasized the extraordinary nature of a convention; the convention worked on a different level than the “every-day operations” of the executive, legislative, or judicial branches.185 Rather, a convention

outranks them all; it is their creator, and fixes limits to their spheres of action, and boundaries to their powers. It is occasional, exceptional, brief, and peculiar; it represents the people in their primary capacity, and forms the organic, fundamental, and paramount law of state. Its members are mere agents or delegates of the people, and they have no power to adopt or create, but, at most, can only propose and present to the people a draft of a constitution for their adoption or rejection.186

Therefore, confusing the process of making “new organic law” with normal governmental operations was akin to mistaking the architect of “a grand edifice with the people who subsequently occupy it.”187

The authors of the majority report argued that the breadth of the provision on constitutional revision left the people “free to select whom they pleased.”188 Likewise, the statute calling the convention had no “limitation or restriction.”189 Indeed, in the final analysis, the majority could not “assume for a moment that the Convention which framed the present Constitution intended to trammel the succeeding generation in any such manner in the formation of a new or revised organic law.”190

The minority report, on the other hand, claimed that the majority embraced a discredited theory of the sovereignty of constitutional conventions, a theory the minority expressly rejected. The minority acknowledged the people as the basis of government and their right to change that government, but in terms that were loaded with conservative meaning. Constitutional conventions could express public opinion, but conventions that swept aside constitutions and reduced society “into its individual elements” simply implied “revolution.”191 The minority did not countenance such a convention nor would they accept the implication that “every provision of the present Constitution, regulating the calling and purpose of this Convention, may be ignored at will.”192 Rather, the existing constitution continued to bind the present convention.

One argument by delegates stressing the non-revolutionary nature of the 1878 California convention rested on the existence of a state constitution. They suggested that the 1849 California Constitution had already altered the relationship between the people and the convention and that the present body did not represent the people in “their primary capacity.”193 Moreover, simply calling a new convention did not resolve the existing constitution “into chaos.”194 The 1849 California Constitution had continued validity.

Yet conventions implicitly operated with a greater competence than the existing constitution or legislature. Accepting both propositions meant acknowledging the role of constituent assemblies in republican governments as the practical embodiment of popular sovereignty. In the final analysis, resolving the implications of the theoretical commitment to popular sovereignty resisted easy answers because it entailed striking a balance with the American experience in self-government.195

In the end, nineteenth-century delegates disagreed over the powers of conventions. On the one hand, those who argued for a revolutionary potential stressed popular sovereignty and the role of the delegates as representatives of this ultimate political power. Their opponents emphasized the preexisting authority of prior constitutions as the manifestation of that popular sovereignty. They insisted that until existing constitutions were changed through the procedures spelled out in those documents, conventions possessed the limited power of merely making suggestions that required formal ratification by the people. Finally, they denied that delegates representing the people had revolutionary power. Such debates over the meaning of popular sovereignty and the power of constitutional conventions ultimately drew upon a general culture of nineteenth-century constitutionalism rather than anything peculiar to Western constitution-making. Most importantly, those debates are powerful arguments supporting the position that the Federal Constitution’s framing did not conclude the American dialogue over essential constitutional questions.

V. Conclusion

Western constitutional conventions clearly regarded their work as important and part of a larger American tradition of crafting “fundamental law.”196 Occasionally, contemporary political disputes tended to overshadow this constitutional process. In the debate over the California Constitution’s bill of rights in the 1878 California convention, one delegate complained that provisions of major significance were being adopted far too quickly. He compared the care and length of time John Adams took to draft the Preamble and bill of rights of the Massachusetts Constitution with the tendency of his fellow delegates. Unlike the seven months Adams spent composing “in the solitude of his chamber, we seem to think that we can come upon the floor of this convention and suck a stump of lead pencil for five minutes, take an old scrap of paper and prepare any amendment for the constitution of the state.”197 Notwithstanding such occasional complaints, Western constitution-making was hardly a departure from the tradition of nineteenth-century constitution-making initiated by the American Revolution generation.

How Western states created constitutions is revealing in a number of ways. First, it is clear that these states did not fashion their fundamental law in isolation or unaware of constitution-making in the other states. The notion of “frontier” constitution-making must be regarded as a myth. Sophistication among delegates and the work they produced varied, but in the process of drafting constitutions (and on one occasion revising an existing constitution), delegates to Western conventions demonstrated their connection with broader regional and national developments in constitutionalism.

Second, despite considerable attention to local concerns and substantive issues, Western state conventions disclose numerous similarities in the process and self- perception of constitution-making. These areas of agreement and their significance emerge when attention is shifted from the “westerness” of these conventions to the generic process of constitution-making.198 In other words, it is necessary to look through the “Western” issues–not to ignore them–in order to focus on issues that challenged all constitutional conventions. Namely, how did Western delegates to conventions perceive their purpose, and the effect of the convention? Answers to these questions suggest that western delegates and constitutional conventions formed part of a broader, developing understanding of the nature and meaning of constitutions.

State constitution-making is central to the American constitutional tradition. State constitutional conventions became the principal forum within which nineteenth-century Americans struggled over the ultimate shape of republican government with respect to the critical issue of what role and power “the people” had in controlling their government. The Federal Constitution provided one possible answer to this fundamental question for governments founded on popular sovereignty. The principle that all legitimate governmental authority rested on the consent of the people could manifest itself in a number of ways, varying the emphasis on the involvement of the people in government and constitutional revision. The system of checks and balances of the Federal Constitution emphasized a circumscribed popular representation and discouraged future constitutional revision.

State constitutions, however, from the eighteenth century and throughout the nineteenth century offered other, sometimes strikingly different, answers to the central question of what role the people would play in constitutional government. Indeed, the nineteenth-century convention debates reveal an ongoing struggle between advocates for a more restricted, more controllable role for the people in government and those who favored a less restricted and more direct role for the people. The debate over this issue occurred in the states, not only because no further federal conventions were held, but because the issues of governmental control were most relevant at the state level. Moreover, how representation occurred and would be apportioned within government became another important subject of constitutional change. Suffrage and the nature of representation proved to be matters beyond legislative competence and would only be finally determined by state constitutional conventions or through constitutional amendment. The changing nature of representation and the extension of suffrage are only two of many examples of how state constitutions reflect “the progress of democracy” in America.199

The issue of the people’s role in government became a matter of constitutional theory that underlay virtually all nineteenth- century constitutional conventions producing an ideological split among constitution-makers. Constitutional questions that remained after one defined “the people” included how the people could and should participate in the formation and revision of constitutions and what limit should be placed on the exercise of popular sovereignty. These questions involved an understanding of constitutional conventions, their powers and possible limits, and whether “the people” could act independently of the existing legislature. On all these matters, delegates differed along lines reflecting their assumptions about what the principle of popular sovereignty implied for American republican governments.

How delegates viewed popular sovereignty, constitutional conventions, and constitutional revision influenced more than simply the perception of written constitutions and opinions on the role the people played in constitutional governments. Indeed, many of the important substantive issues that preoccupied state constitution-makers during the nineteenth century turned on finding a constitutional basis for political, economic, or social choices. For example, debates over suffrage routinely involved disputes over whether the vote was a natural or political right. The fierce struggles over the regulation and control of corporations, the allocation of natural resources, and the takings of private property routinely hinged on whether the constitution could grant legislative powers that might interfere with vested contract or property rights. Additionally, debates over support for public education and welfare raised questions about whether and to what extent such governmental funding had constitutional legitimacy.

Ultimately, state constitution-making challenges the traditional view of the American experience with written constitutions. The underlying basis of American constitutional government and the significance of written constitutions must be reconceptualized after incorporating the thought and self-perception of nineteenth-century state constitution-makers into the American constitutional tradition. This state constitutional tradition is indispensable for correctly assessing the power and meaning of constitutional thought in America. What that collective experience of constitution-making conclusively illustrates is that the formation of the Federal Constitution in 1787 represented only the genesis of American constitutionalism and the American constitutional tradition. Indeed, the eighteenth-century experience of which the Federal Constitution was a part reflected early experimentation with republican constitution-making. The nineteenth century proved to be a time for important development of those concepts, and the states were the locus of that evolution.