State Constitutional Reform

Democrats responded with a populist, antigovernmental, and anticorporation attack on the active state. State legislatures by the late 1840s and early 1850s had become "deeply mired in party politics and changing social and economic interests." ³⁵ The constitutional convention emerged as the device by which to overcome a seemingly unresponsive political system. As one delegate to the Ohio constitutional convention of 1850-1851 explained, "I wish to see the State government brought back to its simple

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and appropriate functions, [leaving] railroad, canal, turnpike and other corporate associations, to get along upon their own credit, without any connection or partnership with the State whatever."³⁶

More than one-half of the states by 1860 either had rewritten existing constitutions or had written new documents. These new organic laws attempted to rein in legislative power by limiting state indebtedness and prohibiting state and local governments from aiding private enterprise through the "loan of credit" or the purchase of private stock. The new documents also placed stringent restraints on capital expenditures. These were logical responses to the failures of the inflated promises that were made at the time the states built internal improvements. Many of the new state constitutions crafted in the fifteen years before the Civil War included provisions for general rather than special charters of incorporation, made just compensation a constitutional principle, and either abolished or limited the practice of imprisonment for debt.

The postindependence republican faith in legislative bodies disappeared, and in its place two new themes surfaced. First, state constitutions, which had been viewed as fundamental laws half a century earlier, became codelike documents intended to limit governmental action. The Ohio Constitution of 1851, for example, was almost double the length of the state's previous organic law, and everywhere delegates seized on their organic laws to check what state legislators could do in economic matters. Second, the roles of state officials began to change significantly. Governors gained increased authority in these documents through the veto power, the pardoning power, and the ability to make appointments, once the exclusive province of the legislature.

Perhaps the most dramatic change came to the judiciary. The practice of electing trial court judges for limited terms had gained acceptance in many states by the 1820s, but it failed to spread to the appellate bench. The idea persisted that appellate judges should remain free from direct partisan and popular influence as they went about mechanically discovering the law. Mississippi in 1832 was the first state to elect all of its judges for limited terms of office (typically six to eight years), and after New York adopted the new selection process in 1846 many states, including Ohio, followed in quick order. The only notable holdout was Massachusetts, where a fierce struggle over the judiciary in 1852 culminated in a victory for supporters of the appointive method and tenure during good behavior.

The motives behind this change were complex. The same populist and antigovernmental pressures that were directed against the legislatures were also aimed at the judiciary. Charles Reemelin, a farmer and delegate to the constitutional convention in Ohio, claimed that popular election would reduce the "aristocratic tendencies of the [judiciary]." ³⁷ But equally, if not more important, many members of the bench and bar, who controlled the convention committees that crafted the judiciary articles, embraced popular election as a counterweight to legislative authority. Michael Hoffman, a delegate to the New York constitutional convention in 1846, encapsulated the position when he explained: "In reorganizing the legislative department we have given it less power for general legislation, [and thus] a large share of judicial legislation will be inevitable, and we must endeavor to supply it" through the popular election of judges. ³⁸ The new method of selection put judges in the position of being able to overturn through judicial review the acts of the popularly elected branches without facing the charge that they were undemocratic.

Popular election was also backward looking. It took account of what was an

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already well-perceived change in the role of the appellate judiciary. These judges had emerged since 1789 as mediators of conflict among competing social and economic interests. It was not mere happenstance that the decision to make them elective came at the end of a great wave of state legislative involvement in mixed economic enterprise. The convention delegates confirmed through their actions that appellate courts had become, on questions involving distributive economic justice, lawmaking as well as lawfinding institutions.

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6
Common Law, the Economy, and the Onward Spirit of the Age: 1789-1861

"The Americans," Alexis de Tocqueville wrote in the 1830s. "have given their courts immense political power." ¹ Judges, who were increasingly trained lawyers, proceeded gradually between the Revolution and the Civil War to claim an extended sphere of operations, one in which they exerted political force as well as legal authority. A new vision of law and an explosion of economic activity precipitated the redefinition of the judicial role. The legal profession "began to observe with frequency that all law, whether promulgated by a court or a legislature, was an essentially mutable and transitory product of sovereign command." ² Legal instrumentalism--a pragmatic and utilitarian view of law--competed with an older conception of it as precedent-bound rules that judges applied mechanically. Judges continued to declare rights based on law, but in the emerging market economy affirming the rights of one party and denying those of another often amounted to mediating between competing visions of economic progress. Sometimes the choice was between private parties, at other times between a private individual and the state, and at still other times between the states and the national government.

Judges invoked concepts of both private and public rights in allocating economic costs, risks, and benefits among different social interests within the federal system. The doctrine of vested rights retained some validity, but complete security for private property rights was contrary to the republican principle that the power of the state had to be used to enhance the commonwealth. Antebellum judges concluded that private rights had to yield to "the rights of the public." ³ This doctrine held that the commonwealth enjoyed certain rights that the courts were duty-bound to protect against self- interest.

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Date: 2015-01-29; view: 711