A New Constitution
Recall the central principles of American constitutional thought: the Lockean social contract based on natural rights and the Madisonian notion of countervailing political power by separating powers and checks and balances among government branches. These fundamental concepts, narrowly defined to fully apply only to white men, motivated California’s constitutional reform in the 1870s. The logic was straightforward: just as one branch of government can check another, the government should grow in power to check corporations, especially the railroads.
Nationally, it was a time of ferment and activism. As the country was modernizing, farmers found themselves at the mercy of predatory railroad companies who exercised monopoly power over fares for freight costs. The National Grange of the Order of Patrons of Husbandry (the Grangers) helped pass laws in several states to regulate railroad rates and establish railroad commissions. California small farmers wanted to do the same to limit the power of the Central Pacific (which controlled some 85 percent of railroad tracks) to set freight prices. Moreover, farmers bore a disproportionate share of the tax burden because much of the land held by railroads and banks was exempt from taxation (Lustig 50).
The United States tumbled into a recession after the Panic of 1873, a banking crisis that led to the nationwide collapse of many banks and thousands of businesses, with the consequence that unemployment dramatically rose. In the largest city in California, San Francisco, Kearney’s Workingmen’s Association grew rapidly, blaming the Chinese for the sudden high unemployment of their heavily Irish immigrant members. At every meeting, they shouted: “The Chinese must go!” The party quickly spread across the state, putting political pressure on Sacramento to call for a constitutional convention to address the perceived problems of monopoly, unfair taxes, and Chinese immigration.
One hundred fifty-two delegates met in Sacramento in the fall of 1878. One hundred twenty were elected, three per senatorial district, and the remaining thirty-two were at-large delegates. Fifty-one were from the Workingmen’s Party, with the remaining majority being Democrats and Republicans. Their intent was straightforward: they believed that the legislature created by the 1849 Constitution failed to safeguard the rights of California workers and small farmers. Therefore, the Convention must step in and directly add laws to the Constitution to address needed policy reforms.
The Convention successfully passed several reforms, creating a Board of Equalization to equalize tax rates across the state and a railroad commission to check the monopoly power of the Central Pacific to set rates. Workers’ rights included an eight-hour day for public employees, limits on convict labor, and the abolition of debtor’s prison. Then the delegates turned on the Chinese, writing an entire article of the Constitution (Article XIX) to persecute one group:
“No corporation now existing or hereafter formed under the laws of this State, shall, after the adoption of this Constitution, employ directly or indirectly, in any capacity, any Chinese or Mongolian...No Chinese shall be employed on any State, county, municipal, or other public work.”
The Convention delegates knew that the anti-Chinese language in the new Constitution violated federal law, especially the Fourteenth Amendment. They argued at the Convention that the federal government should not have jurisdiction over this issue because the “reserved powers” set forth by the Tenth Amendment allow California to discriminate (Willis 635). It is unsurprising, however, that federal courts quickly overturned the enforcement of Article XIX (Scheiber). Then, as the Jim Crow years began nationally, opponents of Chinese immigration successfully pressured the US Congress to ban almost all Chinese immigration with the Chinese Exclusion Act of 1882.
The Convention ended on March 3, 1879. Railroads, mining interests, and water and gas companies spent three million dollars trying to defeat the Constitution’s ratification at the polls. However, on May 7, the voters ratified the new Constitution, 77,959 to 67,134 (Lustig 61).
If the purpose of the new Constitution was to control private power, it was clear that its policy reforms were failures. A state constitution does not operate within a vacuum; it is a creature of national political and legal forces. The Central Pacific Railroad (merged with the Southern Pacific in 1885) gained political control over the railroad commission. The US Supreme Court declared that corporations were legally to be considered “people” and, therefore, possessed property rights that limited government regulations over them. The desired reforms of the 1870s would not be accomplished until the Progressive era, a generation later (Rawls and Bean 198-200).
