5.4.3. The Midwest, 1900-1925: Changing Times, Changing Constitutions

Ellingham v. Dye – Indiana, 1912 (99 N.E. 1); Ohio Constitutional Convention of 1912

  • From the beginning, Progressives worried that their reforms might not make it through the gauntlet of substantive due process.  They took different approaches to overcoming this obstacle.  
  • In some cases, most notably workers compensation laws and public utility regulation laws, Progressives made participation by businesses voluntary, not mandatory, but they crafted incentives that made participation a compelling choice and ensured the laws’ success.  In other cases, such as the creation of civil service and workplace safety commissions, they did not give the agencies unbridled discretion but required that regulations be “reasonable.”  That word, a magic talisman in many areas of law, contributed greatly to such laws passing constitutional muster.
  • But Progressives believed that some obstacles to reform could only be overcome by constitutional amendment, and as a result the 1900-1920 period was an active time in state constitutional history.  Ohio was the constitutional leader in the Midwest.  Frustrated by the Ohio supreme court’s perceived conservatism, Ohio progressives called a 1912 convention which proposed no less than 42 amendments to the state constitution, including amendments to permit passage of laws by popular initiative and referendum; workers compensation laws; a direct primary system; income and inheritance taxes; and a civil service system.  Ohio voters approved all but three of the amendments and the 1913 and 1915 legislatures passed laws implementing many of the newly-authorized reforms.  Thereafter the Ohio supreme court was considerably less of an obstacle to reform. 
  • Indiana and Illinois progressives tried to call constitutional conventions, but their efforts failed because of quirks in their state constitutions.  In Indiana, efforts to submit constitutional amendments implementing Progressive reforms failed because under Indiana's constitution, older pending amendments had to be disposed of first.  In 1910, at Governor Thomas Marshall's urging, the legislature tried to submit a new constitution to the voters that would authorize workers compensation laws and passage of laws by popular initiative and referendum - but in Ellingham, the supreme court held by a 3-2 vote that Marshall could not use this device to get around the requirement of disposing of old constitutional business first.
  • In the late 1890s, Illinois progressives urged that a constitutional convention be called to provide for tax reform and civil service reform, but the state's existing 1870 constitution made it very difficult to call a new confenvion.  Agitation for a convention subsided after 1900 as the legislature gradually implemented Progressive reforms.   
William Jennings Bryan (courtesy Wikimedia Commons)

"The judge, like every other officer, is the servant of the people and there is no reason why he should be made independent of a permanent public opinion upon questions fundamental in character. ... The people are much more apt to deal justly with judges than they are to receive justice at the hands of judges who distrust the intelligence and the good intent of the masses." - William Jennings Bryan, addressing Ohio's 1912 constitutional convention