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how the state judiciary should treat a question of the conformity of an act of their own legislature to the paramount constitution, it has been plausibly said that they should be governed by the same rule that the federal courts would apply. Since an appeal lies to the federal courts, these two tribunals, it has been said, should proceed on the same rule, as being parts of one system. But under the Judiciary Act an appeal does not lie from every decision; it only lies when the state law is sustained below. It would perhaps be sound on general principles, even if an appeal were allowed in all cases, here also to adhere to the general rule that judges should follow any permissable view which the co-ordinate legislature has adopted. At any rate, under existing legislation it seems proper in the state court to do this, for the practical reason that this is necessary in order to preserve the right of appeal.'

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Actually, however, we find many of the state courts in such cases construing the federal constitutional provisions more strictly than does the federal Supreme Court, and limiting the action of the states so as often seriously to cripple them in the exercise of legislative powers clearly belonging to the states. Where the highest federal court has not spoken state courts are legally free to take as arbitrary a view as they may wish in the interpretation of the federal constitution. Where the federal Supreme Court has spoken the state courts are legally bound to follow it in their interpretation of the federal constitution, but there is no way by which this legal duty may be enforced in favor of state enactments, because no appeal lies to the United States Supreme Court if state enactments are declared invalid by the state court. In fact, state courts do not always follow the federal Supreme Court in their interpretation of the pro224 Thayer, Legal Essays, 37-38.

visions of the federal constitution. Then, too, no two acts are apt to be precisely alike and a state court may hold invalid an act or constitutional provision if it varies in the slightest degree from a similar enactment upheld by the United States Supreme Court. Professor Schofield has stated the situation clearly: "De facto the highest courts of the several states are, within the borders of their respective states, ultimate judicial expounders of the constitution and laws of the United States, and as such they have the de facto, though not the de jure, power to shut their eyes to, refuse to follow, and go directly against, decisions of the federal Supreme Court expounding the constitution and laws of the United States, subject to this important limitation however, namely: That, in the exercise of this de facto power, the courts of the several states confine their activity to pressing the screws of the limitations of the constitution and laws of the United States down on to their respective states tighter than the federal Supreme Court does." 225 State courts are therefore, in practice, free to construe the federal constitution as they please so long as they exercise their power to invalidate rather than to sustain state laws or constitutional provisions. They have absolute and final power to annul any state constitutional amendment or provision on any federal ground which they may assign. Under these conditions it may well be expected that if a court is overruled by a constitutional amendment, such an amendment would then be held invalid on federal grounds, if the court cared to go to such lengths to defeat it. Certain it is that under the conditions just referred to the judicial control over amendments is almost as broad as over state statutes, the only

225 Illinois Law Review, iii, 303. See Professor Schofield's note for Illinois cases of the character referred to. See also In re Morgan, 26 Colo., 415, and People v. Williams, 189 N. Y., 131.

difference being that decisions with reference to the substance of amendments must be based on federal grounds. What a court has lost through being overruled on state constitutional grounds may easily be regained by a decision on federal grounds. What a court would do, of course, if it feared being overruled by popular vote, would be to base its decision on federal grounds in the first place and thus completely tie the hands of the state.226 The absolute veto which state courts may exercise upon constitutional amendments has in at least one case been employed unwisely if not arbitrarily.2

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226 The only remedy for the state in this matter would be the amendment of the judiciary act so as to permit appeals from state courts where the decisions of such courts are against the validity of state acts attacked as opposed to the federal constitution.

227 State ex rel. Johnson v. Chicago, Burlington, and Quincy R. R. Co., 195 Mo., 228. It is unthinkable to suppose that the amendment here under discussion would have been held invalid by the federal Supreme Court on the federal grounds assigned by the state court for its decision. Before the fourteenth amendment state courts seem to have followed the rule laid down by Professor Thayer and to have taken a view favorable to state powers when such powers were questioned on federal grounds. The strict attitude of the state courts has developed since the Supreme Court of the United States acquired under the fourteenth amendment a wide control over state legislation. No court likes to be overruled on appeal, and a state court, in case of doubt may often prefer to decide against a state law, thus settling the question finally rather than to decide in favor of the law and run the risk of being overruled on appeal by the United States Supreme Court. Some recent New York decisions are precisely in point. In State v. Lochner, 177 N. Y., 145, the state court of appeals took a very liberal attitude toward legislation regulating hours of labor in bakeries and upheld the legislation, but was overruled by the Supreme Court of the United States in Lochner v. New York, 198 U. S., 45In a later case of People v. Williams, 189 N. Y. (1907), 131, the state court took an extremely strict view and annuled state legislation regarding the hours of labor of women, while the federal Supreme Court in Muller v. Oregon, 208 U. S., 412 (1908), decided but a short time afterward, took a broader view and held somewhat similar

Perhaps enough has been said to indicate the present position of the courts with reference to state statutory and constitutional enactments. It will now be well to discuss briefly some recent developments with reference to the manner of enacting these two forms of state legislation. The distinction in substance between state constitutions and state statutes has to a large extent disappeared through the practice of embodying detailed legislative enactments in the constitution.228 There is now quite a decided tendency in some states to break down the formal distinction between constitutions and statutes by employing the same methods for the enactment of state laws and the adoption of constitutional amendments.

Since 1818 the really fundamental distinction between statutes and constitutional amendments has been that amendments were required to be voted on by the people, while statutes were infrequently submitted to a popular referendum. But the Delaware constitution of 1897 does not require proposed amendments to be submitted to a popular vote. Virginia (1902) and Oklahoma (1907) have made important provisions of their constitutions subject to amendment by legislative act,229 and similar provisions have not been uncommon in other constitutions. In fact a feeling is beginning to develop that when constitutions contain so much of legislative detail, which requires frequent change, alteration in such matters should be left to the legislature state legislation valid. State courts cannot go beyond the United States Supreme Court in liberality toward state enactments and this almost necessarily means that they will be too cautious in order to avoid decisions which may later be overruled on appeal.

228 Oberholtzer, Referendum in America, chap iii. Dealey, Our State Constitutions, p. 9.

229 Virginia, secs. 155, 156 . Oklahoma, Art. ix, sec. 35; Art. xii, sec. 3; Art xx, sec. 2. Such alterations will, without doubt, be dealt with by the courts merely as ordinary statutes.

and not be submitted to the people. Dr. Whitten has said: "If it seems desirable to include matters of detail in the constitution, special provision should be made for their amendment by a two-thirds vote of the legislature or by two suceeding legislatures without submission to the people

the compulsory referendum on all amendments to the constitution is most objectionable, since it burdens our elections with votes on questions in which the people have no interest." 230

But as yet there is little tendency to reduce the popular participation in the amendment of state constitutions, and the distinction in form of enactment between constitutions and statutes is disappearing largely through the increased popular participation in ordinary legislation-through the use of the referendum upon ordinary statutes. South Dakota in 1898, Utah in 1900, 231 Oregon in 1902 and 1906, Nevada in 1904, Montana in 1906, Oklahoma in 1907, and Maine and Missouri in 1908 have adopted the referendum for ordinary legislation. Nevada did not adopt the initiative at all; Maine and Montana adopted the initiative for ordinary legislation, but specifically provided that it should not apply to constitutional amendments, and the South Dakota initiative also does not apply to constitutional amendments. Maine, Montana, and South Dakota therefore give less popular participation in the amendment of their constitutions than they do in the enactment of ordinary legislation. Maine and Montana make the proposal of amendments to the people more difficult than that of laws by requiring a two-thirds vote of the legislature for the submission of amendments, and South Dakota by requiring

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230 N. Y. State Library, Review of Legislation, 1901, p. 29. For a further discussion of this subject see below, p. 289.

231 But the Utah amendment required legislation to put it into operation, and such legislation has not been enacted.

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