College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1958 Missouri Constitutions: History, Theory and Practice William F. Swindler William & Mary Law School Repository Citation Swindler, William F., "Missouri Constitutions: History, Theory and Practice" (1958). Faculty Publications. 1618. https://scholarship.law.wm.edu/facpubs/1618 Copyright c 1958 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs MISSOURI CONSTITUTIONS: ISTORY, THEORY AND PRACTICE (In Two Installments) WILLIAM F. SWINDLER* I. STATE CONSTITUTIONAL LAW IN GENERAL Among the many unwritten chapters in American legal history, the theory and practice of state constitutional law make up a large segment. That the state constitutions adopted since 1787 have been influenced both in form and substance by the Federal Constitution is generally accepted; and the degree of influence upon the federal instrument by pre-1787 state documents has also been the subject of some study.1 But the precise nature of state constitutions, the local needs they were designed to satisfy as distinguished from the needs of a national govern- ment, the significance in their generally greater length and variegation, the similarities and divergences in development in different states- not to mention the practical need of the average attorney for a working knowledge of state, as distinguished from national, constitutional proce- dure-are all fundamental questions for which the answers await addi- tional research to supplement what little has been done to date.2 Mean- *Professor of Journalism, University of Nebraska; A.B., B.S., Washington Uni- versity, 1935; MA., University of Missouri, 1936, Ph.D., 1942; Studied law, University of Missouri and University of Nebraska, 1955 to the present time. 1. See NEVINS, THE AMERICAN STATEs DURING AND AFTER THE REVOLUTION, 1775- 1789, cc. 4, 5 (1927); DODD, REVISION AND AMENDMENT OF STATE CONSTrTUTIONS C. 1 (1910); Morey, The First State Constitutions,4 ANNALS 201 (1894); Webster, Compara- tive Study of the State Constitutions of the American Revolution, 7 ANNALS 380 (1897); Hughes, The Government of Virginia Prior to the Federal Constitution, 6 CONST. REV. 206 (1922); MORISON, A HISTORY OF THE CONSTITUTION OF MASSACHUSETTS cc. 1, 2 (1917); SELsAm, THE PENNSYLVANIA CONSIrruTION OF 1776 passim (1936); Humphrey, Connecticut's First Constitution, 13 CONN. B.J. 44 (1939); Smith, The Early Georgia Constitutions, 16 GA. B.J. 273 (1954). 2. In addition to several of the citations in the preceding note, the following are representative: SWISHER, MOTIVATION AND POLITICAL TECHNIQUE IN THE CALIFORNIA CONSTITUTIONAL CONVENTION, 1878-79 (1930); ORouKE AND CAMPBELL, CONSTrmT- TION-MAXING IN A DEMOCRACY (1943); McDANEL, THE VIRGINIA CONSTITUTIONAL CONVENTION OF 1901-02 (1928); KETTLEBOROUGH, CONSTITUTION MAKING IN INDIANA (1916); ANDERSON AND LOSS, A HISTORY OF THE CONSTITUTION OF MINNESOTA (1921); 1958] MISSOURI CONSTITUTIONS time, there remains a vacuum of historical knowledge in this area of American jurisprudence, occupied to a certain extent by folklore and 3 idealized stereotypes. What Corwin some years ago described as the "higher law theory" of American constitutional law as a whole has doubtless accounted for a certain amount of the studied emulation of the federal document in the organic law of most of the states. On the other hand, the impassioned pronouncements of sovereignty and reserved powers that have dotted the preambles or bills of rights of most state constitutions attest to the elemental conviction of the people that there must be a clearly defined limit to national power, while recognizing that a congressional act within the scope of the constitutional grant "becomes the supreme law of the land, and operates by its own force on the subject matter" of the enact- ment, "in whatever State or territory it may happen to be."' 4 Indeed, the insistence upon the inclusion of the ninth and tenth amendments in the federal bill of rights was itself a recognition of the high degree of sover- eignty which was conceived to inure to the federal document from the moment of its ratification. To the extent that it had received power from the people, it had plenary power.5 By the same token, the font and origin of all power was the people, and their state constitutions, based presumably upon the greater pro- portion of the people's sovereignty withheld from the national govern- ment, logically addressed themselves to a wider variety of subjects.6 CALDWELL, STUDIES IN THE CONSTITUTIONAL HISTORY OF TENNESSEE (2d ed. 1907); DoHe, THE MciGAN CoNsTIurIoNAL CoNVENTONS OF 1835-36 (1940); SHAIBAUGH, THE CoN- sTnTuTi s OF IOWA (rev. ed. 1934); CARY, THE CONNECTICUT CoNsTIrrUoN (1900); Brown, The Making of the Wisconsin Constitution, 1949 Wis. L. REv. 648, 1952 Wis. L. R v. 23; and generally, GREEN, CONSTITUTIONAL DEVELOPmENT OF THE SOUTH ATLANTIC STATES, 1776-1860 (1930). 3. "Over the years the constitutional convention was endowed by popular faith with legendary qualities contributing to the constitution worship that figured so much in our legal history," observes a contemporary scholar. HURST, THE GRoWTH OF AnmmcAx LAw-T-m LAW MAxERs 217 (1950). This has led to an exaggerated concept of the integrity and competence of many state founding fathers of the past. 4. Pollard v. Hagan, 44 U.S. (3 How.) 391, 397 (1845); cf. McCulloch v. Mary- land, 17 U.S. (4 Wheat.) 415 (1819). See also Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1903). 5. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 562 (1816); cf. PATTERSON, THE FORGOTTEN NINTH A mENT (1955). 6. The New York constitution of 1777 declared that "no authority shall. on any pretense whatever, be exercised over the people or members of this state, but such as shall be derived from and granted by them." N.Y. CoNsT. § 1 (1777); see Barker v. People, 20 Johns. (N.Y.) 457 (1823). Some writers have felt that the Federal Constitution left the states "in the position of a residuary legatee under a will." Dodd, The Decreasing Importance of State Lines, 27 A.B.A.J. 78, 79 (1941). But cf. Orfield, infra note 11. MISSOURI LAW REVIEW [Vol. 23 "[All] power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness," and to "guard against transgressions of the high powers which we have delegated, we declare, that everything in this article is excepted out of the general powers of government, and shall remain forever inviolate," ran the bill of rights of the Kentucky constitution of 1798;7 while that of Ohio, the first state to be created out of the territory defined by the famous Northwest Ordinance, declared that "every free republican government, being . organized for the great purpose of protecting their rights," the people "have at all times a complete power to alter, reform, or abolish their government, whenever they may deem it neces- sary." To these familiar-sounding statements a Pennsylvania court in 1845 added: "The rule of interpretation for the state constitution differs totally from that which is applicable to the Constitution of the United States. The latter instrument must have a strict construction; the former, a liberal one. Congress can pass no laws, but those which the Constitu- tion authorizes, either expressly or by clear implication; whilst the gen- eral assembly has jurisdiction of all subjects on which its legislation is not prohibited."9 With such grandiloquent avowals of political belief, implemented by the increasing detail in which the state charters dealt with the problems and processes of local government, it might well have been supposed that the organic law of the several states, rather than that of the national state, would have become paramount by now. That the contrary has proved true is generally understood to have resulted from the fundamen- tal shift in economic orientation which came about in the United States in the last third of the nineteenth century'°-setting in motion a trend 7. Ky. CoNsT.art. XIA §§ 1, 28 (1798). 8. OHIo CoNsT. art VfI, § 1 (1802). It has been held generally that with the adoption of state constitutions, the provisions of the Ordinance of 1787 ceased to operate. See, e. g., Escanaba Company v. Chicago, 107 U.S. 678 (1882); Permoli v. New Orleans, 44 U.S. (3 How.) 561 (1845). 9. Norris v. Clymer, 2 Pa. 277 (1845). See also Campbell v. State, 11 Ga. 353 (1852); Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272 (1868). 10. On the relations between the federal power and that of the states, in general, see McCulloch v. Maryland, supra note 4; Legal Tender Cases, 12 Wall. 457 (1871); Kansas v. Colorado, 206 U.S. 46 (1907); United States v. California, 297 U.S. 175 (1936); Carter v. Carter Coal Co., 298 U.S. 238 (1936); Helvering v. Gerhardt, 304 U.S. 405 (1938). On the widely-discussed "conspiracy theory" of reorienting federal- state relations through the medium of the Civil War and Reconstruction Amendments, see Boudin, Truth and Fiction About the Fourteenth Amendment, 16 N.Y.U.L.Q. REV. 19 (1938); Graham, The "Conspiracy Theory" of the Fourteenth Amendment, 47 YAix LJ. 371 (1938). 1958] MISSOURI CONSTITUTIONS toward interstate corporate enterprise and increasingly complex indus- trial and social processes that inexorably called forth an interstate admin- istrative system which only the federal authority could execute. As a result, the pendulum of legal theory swung in emphasis from one extreme -the primacy of the people and their local governments which was the political apologetic of the early nineteenth century-to the other, focussed almost exclusively upon the dramatic issues of centralized national power."1 The progression of political theory away from the succinct statement of general principles in the early state constitutions, in the direction of increasingly detailed organic laws seeking to cope with the increasingly complex problems of local society as the industrial revolution advanced, is readily traceable in charters taken from different eras and areas.