« PreviousContinue »
The enacting clause of our present constitution is brief. It contains only the following declaration:
We, the people of the State of Ohio, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare, do establish this constitution.
We have here a distinct recognition of the Deity which does not appear in the Constitution of the United States or in our state constitution framed in 1802. The convention of 1873-1874 adopted an enacting clause identical with that of our present constitution.
The bill of rights is a series of declarations of the general and fundamental rights reserved to the people. These include, of course, the natural and inalienable rights of life, liberty and the pursuit of happiness," more specifically stated. The bill of rights in our first constitution included twenty-eight sections; in our second, twenty; in that of 1874, twenty-one, and in our present one, as amended in 1912, twenty sections and one supplemental section. The subject matter in all these is essentially the same. The bill of rights usually follows immediately the enacting clause or preamble, but it is sometimes written into the closing portion, as it was in our constitution of 1802.
The bill of rights comes down to us from the famous Magna Charta. The original purpose was to secure to the people certain fundamental rights against the despotic power of the sovereign. In a republican government, where the people are sovereign, it would seem superfluous to promulgate this series of declarations to protect the people from themselves. It may be answered, however, that popular majorities may become tyrannical and that these declarations extend a salutory protection over minorities and individuals. They serve also to restrain legislatures, which are often objects of serious solicitude to those who elect them.
The bill of rights in the Constitution of the United States includes the first ten amendments. This portion of a state constitution is more extended and sometimes contains items that might more properly be placed with the miscellaneous provisions.
FRAME OF GOVERNMENT
Under the frame of government are included the three departments, legislative, executive and judicial. In a general way it is the function of the legislative department to enact the laws; of the executive department to enforce the laws, and of the judicial department to expound the laws and apply them to individual cases.
Under the state constitution the legislative function is vested in a General Assembly or Legislature, consisting of two branches, a Senate and a House of Representatives. The latter is the more numerous body; the former is supposed to be the more dignified and select. The members of both are elected by the people and in fact do not differ essentially in general character and ability. The upper body being smaller in number, is for that reason less unwieldy and more orderly and expeditious in the transaction of business.
In recent years the people in a number of states have reserved to themselves the right to initiate and enact laws. When such reservation has been made, the electorate must be included with the law making power. Oregon has had most extended experience in direct legislation.
The executive function is vested in the governor and elective or appointive administrative officers. It is their duty to see that the laws are executed or carried into effect. For instance in Ohio the registration of automobiles is directed by the secretary of state, elected by the people, and the state road laws are administered by a director of highways and public works, appointed by the governor. Most of the actual work is done by the large number of subordinate appointees under the heads of the different departments.
The judicial department is vested in the courts, supreme and inferior, whose duties are to interpret and apply the laws. In our state they consist of the Supreme Court, the Court of Appeals, the Courts of Common Pleas, the Probate Courts and the courts of justices of the peace.
The theory of the framers of our constitutions, state and national, was that these three departments should be independent of one another, and so far as the framing of the constitutions is concerned, this independence is preserved. In actual practice, however, all three transcend their theoretical limitations. The Supreme Court may declare a law unconstitutional, supply by interpretation what is not expressed, and read into an act what in its judgment may reasonably be inferred. The law of the land is found not only in the written statutes, but in the opinions and decisions of the courts as well.
Between the legislative and executive departments the exchange of authority is more frequent and flagrant. The chief executive, be he governor or president, is much more than an administrative officer. His veto gives him power to prevent legislation. Through his messages to Congress or the General Assembly he may advise the enactment of laws.
This privilege would not in itself be very effective were it not backed up by the alluring and persuasive power of patronage. The trading of political jobs for legislation was long so common that the people had come to look upon it as a matter of course—a part of the game. For a governor to distribute a few fat offices among members of the Legislature in return for the support of his favorite measures, sometimes designed to help him toward a political goal, was considered and even to this day, by practical politicians, is considered quite the proper thing : but for the "big interests” that have no offices to give, to distribute cold cash in behalf of the passage of their measures is regarded as a heinous crime. Both offenses are about equally reprehensible and demoralizing, and the time is probably not far distant when they will be so regarded. There is no reason why a governor or president should become, through the distribution of spoils, ex-officio the chief corruptionist of the State or Nation.
There is, however, a demand among the people themselves that their chief executive take a leading part in the campaign for legislation, with the qualification, of course, that it be for good legislation. In these days a governor or president who confines himself strictly within contemplated and prescribed constitutional limitations is pretty certain to be severely criticised for “sitting still and doing nothing," while the Legislature or Congress "fritters away the time” in vain vaporing and turbulent inactivity. What the future relation between these two departments may be is, of course, a matter of conjecture. But there is warrant for the hope that it will be based on something less reprehensible than "hire and salary” with political jobs as the medium of exchange. The example and influence of this system is bad—a standing invitation and suggestion to all forms of corruption.
The miscellaneous provisions of a constitution include such as may be classed properly under the preceding divisions. They, of course, are not uniform for all states or for the same state at different periods. The modern tendency has been distinctly to increase their number. In spite of the demand of editors and authors for “a state constitution of a few plain, simple general provisions,” the more powerful and persuasive call of our modern complex civilization leads in the opposite direction. There is continually more and more to protect, promote and prohibit by constitutional mandate. There is a popular distrust of legislatures, and this is extending in some degree to the courts. In recent years there has been a disposition to center authority, responsibility and trust in the governor, and sometimes it has seemed that we are on the eve of a revival of the fetish, “the king can do no wrong."
It has been possible for governors to do things with impunity that would bring down upon a Legislature denunciation from the housetops. But this rehabilitation of one man power will soon have had its day, and it requires no prophet to predict that the superabundance of gubernatorial perquisites, prerogatives and powers will be relegated to the scrap heap of the past.
A SHORT CONSTITUTION
It would be possible, of course, to eliminate all miscellaneous provisions and compress the remainder of the state constitution into a single sentence something like this:
The General Assembly shall trust in God and legislate in the interest of justice, liberty and humanity.
It is morally certain, however, that such a constitution, like the religious inscription on our coins, excellent and all inclusive though it be, would not prove adequate in practical application.
Modern tendencies, it is therefore safe to say, portend an expanding basic law and a little more “legislating in the constitution,” though it is generally agreed that the latter should be reduced to a minimum.
The schedule provides for carrying the constitution into operation. A new constitution brings changes. It supersedes a previously existing constitution or instrument of government. It is important that the change be attended with as little friction as possible. To provide for this a schedule of several sections is generally necessary, specifying when and how the constitution shall be submitted to a vote of the people, and when and how, if adopted, its provisions shall go into effect. In the schedule may be included any independent proposals to be submitted to the people, except when all the proposed changes are submitted as separate amendments, as they were by the Ohio constitutional convention of 1912. Upon adoption, the proposals included in the schedule become parts of the constitution.
The various divisions here briefly presented are exemplified in our present state constitutions as follows:
1. Enacting clause or preamble. 2. Bill of rights.
Article II. Legislative.
Article IV. Judicial. 4. Miscellaneous provisions.
Article V. Elective franchise.
Article VII. Public institutions.
Article XVIII. Municipal corporations. 5. Schedule.
The constitutions of the various states are the latest authoritative manifestations of the evolutionary development of ideas of popular government. In the older states the progressive steps are seen in the amendment and revision of written constitutions. Ohio is no exception to the general rule. "New occasions teach new duties," and the basic law of our commonwealth, like its social, industrial and political fabric, changes with the demands of the passing years. Under portions of our first state constitution we could still live and prosper; under some of its provisions efficient administration would now be impossible.
It is a significant fact, paradoxical though it may seem, that our revolutionary forefathers, even in the fresh and lambent glow of the Declaration of Independence, with its sweeping and all inclusive claims "that all men are created free and equal” and that “governments derive their just power from the consent of the governed,” did not, if we judge from their laws and constitution entertain implicit faith in the capacity of the people for absolute self government-for direct and unrestricted participation in the election of rulers and the making of laws. In framing the Constitution of the United States they did not provide that citizens should vote directly for President, on the ground that they did not possess the requisite intelligence to make a wise choice for this high office. The people were given power to choose electors who in turn, after deliberate and conservative consideration of the whole field of eligibles, were to choose a President of the United States much as a modest and conscientious board of trustees choose a president of a state university. The old form still remains, but the people have bound their electors to vote their choice, and thus virtually elect directly their chief magistrate, whose name under the party emblem tells them where to mark the ballot.
The first constitution of Ohio reflects in a general way the dominant views of our young republic on matters of government. There are exceptions, of course, including the declaration against slavery that came down from the Ordinance of 1787. As frequently stated, the formation and adoption of this constitution was precipitated by the political conditions that prevailed in the Northwest Territory. The old federal party of Washington and Adams was not popular in the West, and the somewhat autocratic rule of Governor St. Clair, its chief exponent in this region, helped still further to array the people against it. Tiffin, Worthington, Massie and their friends wished speedily to erect a new state in order to dispose of St. Clair and add to the votes of Jefferson in the electoral college. The impelling power of party enthusiasm had much to do in rushing Ohio into the Union.
But the zeal of party leaders and the progressive ideas of the Jefersonian democracy, with its alluring and persuasive plea for a larger participation of the people in their government, did not advance our first constitution much beyond the restricted views of representative democracy generally prevalent at that early date.
The convention organized November 1, 1802, by choosing Edward Tiffin, president; Thomas Scott, secretary, and William McFarland, assistant secretary. The records of the convention that framed the first constitution are