In general a state constitution sets forth the form of government, prescribes the powers and duties of state officers, prohibits the legislature from doing certain things (such as changing the state capitol, for example), and guarantees certain fundamental rights to the citizens. But this is not all. Some of them contain long provisions relating to the powers of local governments, the pay of officials, the borrowing of money, and the regulation of banks. Putting such details into the state constitution is an unwise policy because constitutional provisions are difficult to change, whereas these various matters need to be dealt with somewhat differently from time to time.
The two methods of amendment.
How State Constitutions are Amended.—There are two common ways of amending a state constitution. The first, which exists in nearly all the states, is by concurrent action of the legislature and the people. The legislature takes the first step by proposing the amendment; then the people at the polls accept or reject the proposal.[[96]] The other way is by action of the people alone. By means of the initiative, as already described, the people may propose an amendment, have it put on the ballot, and accept or reject it as they desire. This method of amending the constitution is used in less than half the states and even there it is not employed with great frequency. The great majority of the amendments to state constitutions (scores of them are made every year in the country as a whole) are made by the first-named plan.
The states have the residuum of powers.
The Powers of the States.—Some years ago a foreign student of government, desiring to find out what powers belonged to the legislature of Massachusetts, took a copy of the state constitution and began reading it carefully. Much to his surprise he found that it contained no list of the powers which the legislature might exercise but merely stated some things which the legislature must not do. The reason for this, of course, is simple enough. The states retain all the powers which they have not given to the national government. The way to find out whether a state possesses a certain power is to look in the constitution of the United States. If the power is there given exclusively to Congress or prohibited to the states, then the state legislature cannot exercise it. But if the power is not mentioned in the national constitution, either expressly or by implication, then the state legislatures have it.
On this basis a certain division of powers is made between the nation and the states. The general principles on which the division is made are easy enough to understand, but the exact distribution of powers is something that can only be mastered by studying it. Even lawyers do not always get hold of it accurately and newspapers are constantly making mistakes because they fail to realize just where the boundaries of the various governmental powers begin and end. So let us try to condense the matter into a nutshell, or, to be more accurate, into four nutshells as follows:
1. Some powers belong exclusively to the nation. These include the power to declare war, to regulate foreign and interstate commerce, to coin money, to establish post offices, and so on. No share in the management of these things belongs to the state governments.
2. Some powers belong concurrently both to the nation and the states. Both the nation and the states, each within its own sphere, have the power to tax, to borrow money, to charter banks, to promote education, and to do many other things. These are called concurrent powers because the national and state authorities may both exercise them at the same time.
3. Some powers are prohibited to the nation and some are prohibited to the states. The national and state governments, for example, are forbidden to pass any bill of attainder, to grant titles of nobility, or to take private property for public use without compensation. The states, in addition, are forbidden to make treaties, coin money, or levy tariff duties. There are various other prohibitions upon both the nation or the states, as will be seen by reading carefully the provisions of the national constitution.[[97]]
4. All other governmental powers are reserved to the states. Every power which does not fall within the foregoing three classes belongs to the several states exclusively. This is not only in accordance with the theory of the national constitution as a grant of powers but it is expressly stated in the Tenth Amendment.[[98]]