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Managing the Periphery in the Gilded Age: Writing Constitutions for the Western States

Published online by Cambridge University Press:  19 May 2008

Amy Bridges
Amy Bridges
Affiliation:
University of California, San Diego
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Abstract

In this essay I argue that in the Gilded Age (the last quarter of the nineteenth century), delegates to constitutional conventions in the western territories designed state governments to manage, as best they could, the development of their economies. They were, and understood themselves to be, citizens of the periphery of the United States. Delegates to the conventions hoped to shield their states from the worst possible outcomes of that peripheral relationship, and foster the best ones. My arguments contribute to our understanding of state constitutions and, more broadly, to central concerns of American political development—regionalism, labor law, and state building.

Type
Research Article
Information
Studies in American Political Development , Volume 22 , Issue 1 , Spring 2008 , pp. 32 - 58
Copyright
Copyright © Cambridge University Press 2008

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References

1. By “the West” I designate the eleven states west of Nebraska that were admitted to the Union by 1912. California's 1879 constitution replaced the state's first, written in 1849. Of the four remaining western states, two wrote their first constitutions earlier in the century (Oregon 1859, Nevada 1864) and two wrote their constitutions after 1900 (Arizona and New Mexico, both 1910). In this essay I rely on Glynn, George A., ed., Convention Manual of the Sixth New York State Constitutional Convention, 1894 (Albany, NY: The Argus Company, 1894)Google Scholar for the texts of constitutions written before it was printed.

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53. Donald Wayne Hensel, “A History of the Colorado Constitution in the Nineteenth Century,” unpublished dissertation Dept. of History, University of Colorado, 1957, 97.

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57. Bromwell authored, with Agipeto Vigil, a long and spirited minority report arguing for women's suffrage. See Proceedings of the Constitutional Convention held in Denver, December 20, 1875 to Frame a Constitution for the State of Colorado (Denver, CO: Smith-Brooks Press, 1907), 266–71.

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60. Toole saw direct democracy as a powerful aid in the fight against corruption. “It is the sure weapon,” he argued, “with which to put to flight the briber and the lobbyist, and drive them, like Hagar, to the wilderness.” Richard Brown Roeder, “Montana in the Early Years of the Progressive Period,” Unpublished PhD Thesis, University of Pennsylvania, 1971 p. 177.

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63. Hensel, “History of the Colorado Constitution,” 214–15; Proceedings of the Constitutional Convention … Colorado, 730. See also Fernandez, Jose Emilio, Biography of Casimiro Barela, trans. and ed. Gabriel Melendez, A. (Albuquerque: University of New Mexico, 2003 [1911]), 41–42Google Scholar.

64. In Colorado in 1859, before the enabling act, a convention was elected and offered a constitution for ratification. The proposed constitution was rejected, 2,007 votes to 1,649; six weeks later a very hastily written constitution won approval, 2,163 votes to 280. Absent an enabling act, the constitution could not become law. In 1864 another proposed constitution was rejected, 4,672 to 1,520. The next year a proposed constitution was approved by a closer vote, 3,025 to 2,870. None of those constitutions had the sanction of an enabling act. Finally, after an enabling act was passed, the constitution offered by the 1875–1876 convention was approved by a large margin, 15,443 to 4,039 (Hensel, “History of the Colorado Constitution,” 27, 68, 72, 228). Montana held a constitutional convention, also without the sanction of an enabling act, in 1884. The constitution produced was passed by a vote of 15,506 to 4.266. Not only was there no enabling act, however, but also the Republican Senate successfully opposed the admission of Democratic Montana. See Malone, Michael P., Roeder, Richard B., and Lang, William, Montana, A History of Two Centuries (Seattle: University of Washington Press, 1971), 194–95Google Scholar.

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69. Proceedings and Debates of the Constitutional Convention Held in the City of Helena, Montana, July 4 to August 17, 1889 (Helena, MT: State Publishing Company, 1921), 500.

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74. Donald Pisani has shown that the claim that riparian rights were the exclusive water rights practice in the East is incorrect. Prior appropriation had precedents in eastern states. See Pisani, Donald J., Water, Land, and Law in the West, the Limits of Public Policy, 1850-1920 (Lawrence: University Press of Kansas, 1996)Google Scholar. Nevertheless, this was the argument presented at these conventions, for example, by Senator Stewart, speaking at Montana's convention. See Proceedings … Montana, 806.

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79. Denver Daily Tribune, 2 Mar. 1876, 4.

80. Bromwell, “Constitutional Convention,” 313.

81. Debates and Proceedings … California, II: 1020.

82. Debates and Proceedings … California, II: 1021.

83. Debates and Proceedings … California, III: 1372.

84. Debates and Proceedings … California, II: 1021.

85. Debates and Proceedings … California, II: 1025.

86. Debates and Proceedings … California, III: 1373.

87. Debates and Proceedings … California, III: 1373.

88. Debates and Proceedings … California, II: 1021.

89. Swisher, Motivation and Political Technique, 14.

90 Debates and Proceedings … California, II: 1027.

91. Debates and Proceedings … California, III: 1374.

92. Debates and Proceedings … California, III: 1375.

93. Proceedings and Debates … Idaho, II: 1123.

94. Proceedings and Debates … Idaho, II: 1123.

95. Proceedings and Debates … Idaho, II: 1361.

96. Colson, Idaho's Constitution, 162–63.

97. Proceedings … Montana, 138–39.

98. Journal of the Constitutional Convention, State of Wyoming (Cheyenne, WO: Daily Sun, Book and Job Printing 1893), 193.

99. Journal … Wyoming, 293.

100. Journal … Wyoming, 498–500.

101. Journal … Wyoming, 500–501, 534–37.

102. Morriss, “Lessons from the Development of Western Water Law,” 905–37.

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108. Debates and Proceedings … California, II: 1021.

109. Proceedings … Montana, 472.

110. Proceedings … Montana, 500.

111. Helena Daily Herald, 2 Aug. 1889, 4.

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113. This argument was offered in Miller's classic narrative (1971) and in Hensel's analysis of votes at the Colorado constitutional convention (“History of the Colorado Constitution”). Kanazawa and Noll found that at the Illinois convention “railroads had most success with delegates from areas without service, and less success with delegates from monopolized areas than from more competitive ones,” while “party affiliation appears to have been unimportant.” Kanazawa, Mark T. and Noll, Roger G., “The Origins of State Railroad Regulation: The Illinois Constitution of 1870,” in The Regulated Economy, A Historical Approach to Political Economy, ed. Goldin, Claudia and Libecap, Gary D. (Chicago: University of Chicago Press, 1994), 13–54, 46Google Scholar.

114. Hensel, “History of the Colorado Constitution,” 145.

115. Denver Daily Tribune, 29 Feb. 1876, 4.

116. Bromwell, “Constitutional Convention,” 305.

117. Denver Daily Tribune, 28 Feb. 1876, 4.

118. Debates and Proceedings … California, I: 488.

119. Debates and Proceedings … California, I: 488.

120. Debates and Proceedings … California, I: 480.

121. Estee was a lawyer from San Francisco and had served in the state legislature, where he was chosen speaker of the assembly in 1874. Swisher, Motivation and Political Technique, 28.

122. Debates and Proceedings … California, I: 377, 382.

123. Debates and Proceedings … California, I: 454.

124. Debates and Proceedings … California, I: 600.

125. Debates and Proceedings … California, I: 377.

126. Debates and Proceedings … California, III: 1228.

127. Debates and Proceedings … California, III: 1227.

128. Debates and Proceedings … California, III: 1227.

129. Debates and Proceedings … California, III: 1228.

130. Moffett, S. E., “The Railroad Commission of California, a Study in Irresponsible Government,” Annals of the American Academy of Political and Social Science 6 (1895): 109–17, 477Google Scholar.

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132. Journal … Wyoming, 581.

133. Hensel, “History of the Colorado Constitution,” 418, 152.

134. Art. XII, sec. 3, Debates and Proceedings … California, I: 383–88.

135. See Colo. Const. Art. XV, sec. 8; Idaho Const. Art. XI, sec. 8; Mont. Const. Art. XV, sec. 9; Utah Const. Art. XI, sec. 11; and Wash. Const. Art. XII, sec. 10. Wyoming's constitution declared the government's eminent domain prerogatives over corporations in general, and over railroads in particular (See art. X, sec 9, and art. X, sec. 4, “Railroads”).

136. Zackin, “American Rights Tradition,” 4.

137. Gillman, Howard, The Constitution Besieged, The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993), 71Google Scholar.

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143. Journal … Wyoming, 447–48.

144. Journal … Wyoming, 450.

145. Journal … Wyoming, 452.

146. This claim contradicts many sources, which state that Montana and Wyoming also abrogated the fellow servant doctrine. The source cited for the claim is Hicks, who saw the provision as an effort to undermine fellow servants, which it failed to do. As related above, efforts to abrogate the fellow servant doctrine at the Wyoming convention met with effective resistance. Arizona was the first western state to declare in its constitution “the fellow servant doctrine is forever abrogated in the state of Arizona.” Section 193 of the Mississippi Constitution of 1890 lists several protections for railroad workers. Ironclad contracts are abrogated; the negligence of fellow servants does not, in every circumstance, protect the employer from liability, nor does employee knowledge of dangerous conditions serve as a defense for the employer (Glynn, Convention Manual, 1086).

147. Journal … Wyoming, 450. In Wyoming, cattle ranchers and farmers had their own reasons to resent railroads, which may have increased general support for this resolution.

148. Proceedings … Idaho, II: 1106–07.

149. Proceedings … Idaho, II: 1373–75.

150. Proceedings … Montana, 239–40.

151. Judson Ferguson, commissioner of the Bureau of Agriculture, Labor, and Industry in Montana was an example of such an advocate. Ferguson is discussed in chapter 2 of Roeder, “Montana in the Early Years”; see, e.g., 27–34. See also Trachtenberg, Alexander, Laws for the Protection of Coal Miners in Pennsylvania, 1824–1915 (New York: International Publishers, 1942), 89Google Scholar.

152. Journal … Wyoming, 764.

153. Proceedings … Idaho, II: 1378.

154. Proceedings … Idaho, II: 1380.

155. Proceedings … Idaho, II: 1380.

156. Journal … Wyoming, 765.

157. Journal … Wyoming, 765–76.

158. Proceedings … Montana, 202–209; Proceedings … Idaho, II: 1381–85.

159. Scheiber, “Race, Radicalism, and Reform,” 5.

160. Debates and Proceedings … California, I: 634.

161. See Connie Chiang, “Chinatown Will Cease to Exist: Race, Nature, and Fire at Monterey's Chinese Fishing Village, 1906,” presented at the Annual Meeting of the Western History Association, San Diego, CA, 2001; Crane, Paul and Larson, Alfred, “The Chinese Massacre, I,” Annals of Wyoming 12 (1940): 47–55Google Scholar and “The Chinese Massacre II,” Annals of Wyoming 12 (1940): 153–61; Wortmann, Roy T., “Denver's Anti-Chinese Riot, 1880,” Colorado Magazine 42 (1965): 275–91Google Scholar.

162. Proceedings … Montana, 214–15.

163. Proceedings … Idaho, II: 1387–89.

164. Journal … Wyoming, 405.

165. Proceedings … Montana, 130.

166. Proceedings … Montana, 140.

167. Proceedings … Montana, 129–30.

168. Journal … Wyoming, 403.

169. Wyoming Constitution, Art. I, sec. 22.

170. Declarations of government's obligations to labor also appear in a few contemporary constitutions from other regions. In Arkansas, the General Assembly was asked “to require … means to be provided … to secure as far as possible the lives, health, and safety of persons employed in mining. And shall provide for enforcing such enactments by adequate pains and penalties” (Ark. Const., Art XIX, sec. 18). Even more expansively, Mississippi's constitution of 1890 mandated the legislature to “provide for the protection of employes [sic] of all corporations … from interference with their social, civil, or political rights” by their employers (Miss. Const., sec. 191).

171. Tripp, Joseph F., “Progressive Jurisprudence in the West: The Washington Supreme Court, Labor Law and the Problem of Industrial Accidents,” Labor History 24, no. 3 (1983): 342–65, 344Google Scholar. See also Douglas Hurt, R., “Populist-Endorsed Judges and the Protection of Western Labor,” Journal of the West 17, no. 1(January, 1978): 19–26Google Scholar.

172. Chausovsky, Jonathan, “State Regulation of Corporations in the Late Nineteenth Century: A Critique of the New Jersey Thesis,” Studies in American Political Development 21 (Spring 2007): 30–65Google Scholar. Chausovsky's central argument is that, rather than seeing New Jersey as a special case for its “untethering of the corporation from prior legislated restraints,” we should recognize that “many states actively adjusted many elements of their corporation law in the decades after the Civil War, often in the direction of greater liberalization” (30–31). Chausovsky looks at thirty-five states over thirty-five years, ending in 1900, providing a very broad view of changes in laws affecting corporations. However, in 1900 there were forty-five states in the union. Of the eleven-state West, Chausovsky's sample includes only California and Oregon. Nevertheless, he claims of his study, “when we look at all [my emphasis] the states … over a thirty-five year period …” (40). Generalizations made on the basis of the thirty-five-state sample may or may not be true of the eleven-state West.

173. Lilley III, William and Gould, Lewis L., “The Western Irrigation Movement, 1878–1902, A Reappraisal,” in The American West, A Reorientation, ed. Gressley, Gene M. (Laramie: University of Wyoming, 1966), 57–74, 58–59Google Scholar.

174. Denver Daily Tribune, 1 Mar. 1876, p. 4.

175. Debates and Proceedings … California, II: 1020