Guest Essayist: Joerg Knipprath


California has had two constitutions during statehood, one from 1849 and the other from 1879. Although only a generation separates them, their style, operative principles, and political consequences could hardly be more different. The Constitution of 1849 represented the classic American constitutionalism of the U.S. Constitution and of the Iowa and New York state constitutions that were its direct antecedents. The Constitution of 1879 bore the imprint of the wave of political populism sweeping the country during that decade. Together with subsequent amendments adopted during the Progressive Era, it became–and remains–an instrument of that time and contributes to the state’s radical politics.

The collapse, after about one month, of the quixotic Bear Flag Republic that had been proclaimed at the small town of Sonoma in June, 1846, and the ensuing declaration of American military control over California by Commodore John Sloat, resulted in a de facto military government for the next several years. The war with Mexico and the national controversy over slavery became tangled with the discovery of gold in January, 1848, at John Sutter’s sawmill at Coloma, east of Sacramento, and the ensuing rush of “49ers” into the area. Ordinarily, Congress would have established a territorial government and set California on an eventual path to statehood. But the political difficulty attendant to deciding what to do with the large territory gained from Mexico in the Treaty of Guadalupe Hidalgo resulted in a stalemate in Congress that kept California’s status frozen in place.

Californians had grander ideas. Why not skip territorial status and move directly to statehood? California, after all, was different from the rest of the formerly Mexican territory. California had established towns, a developing economy, good harbors for commerce, and a comparatively sizable population. Texas was different, too, and it had received statehood. Most of the rest of the new lands were wild and unoccupied.

When Congress failed to act, Californians in several towns in the northern, much more populous, part moved to organize representative governments on their own. They were encouraged by various national politicians, such as Missouri’s Senator Thomas Hart Benton, President Zachary Taylor, and the new “civil” governor, General Bennett Riley. The latter two went further, urging Californians to elect delegates to a state constitutional convention.

The convention of 48 delegates met in early September, 1849, in Monterey. Three-fourths of the delegates came from the northern areas (mostly settled by Americans from the Northern states; only 11 came from the Southern California (predominantly settled by American Southerners). The mining districts had elected a number of additional delegates who did not attend because of more pressing matters–mining for gold.

The northern delegates voted for statehood, the southerners preferred territorial status over concerns about taxation. The slavery issue was quickly settled. California would be a free state not due to humanitarian abolitionist sentimentality, but because, as one historian observed, the 49ers “were sensitive on the matter of dignity of hard manual labor, or rather of their particular form of it; they were outraged at the imputation that goldmining was work appropriate for slaves.” Echoing the Northwest Ordinance of 1787, and foreshadowing the 13th Amendment to the Constitution, the convention voted that “Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state.” At the same time, the convention initially adopted a provision to exclude free Blacks from the state, but eventually reversed itself out of concern that Congress might reject the constitution on that ground.

The most difficult question, one that almost broke up the convention, was the question of the state’s eastern boundary. One faction wanted what eventually became the boundary, another wanted to include present-day Nevada and most of Utah and Arizona. The latter group had on its side the fact that the most common maps at the time and the one used in the treaty of peace showed this version of a “Greater California.” The convention eventually settled for the smaller boundary because of concerns about inability to have representative government for such an expanse, the inclusion of the Utah Mormons who were agitating for their own “State of Deseret,” and Congress’s likely negative reaction against such a massive state.

The constitution prohibited dueling, a restriction that proved quaintly optimistic. In a rough-and-tumble, male-dominated society that was still tinkering with formal legal structures, physical altercations would be a quick and direct way to resolve personal differences. One of California’s first Senators, William Gwin, fought a duel in 1853. Another Senator, David Broderick (a political rival of Gwin), would be killed in a duel by state supreme court chief justice David Terry. Broderick was not Terry’s first dueling victim. Terry was a master of several weapons, from knife to machete to pistol. Terry was shot many years later by a body guard of one of Terry’s former colleagues on the court, Stephen Field, who by that time had become a justice on the U.S. Supreme Court. The body guard, U.S. deputy marshal Neagle, feared that Terry was about to draw a weapon to kill Field.

The structure of the constitution reflected the traditional separation of powers among branches of the government. It was a comparatively brief and concise document produced within six weeks by using the Iowa constitution (mostly) and the New York constitution (some) as models. There was a bicameral legislature, and a plural executive whereby the governor and various other officers were elected independently from each other by the voters. The constitution followed the emerging democratic trend of the 19th century of an elective judiciary at all levels. The state supreme court was composed of a chief justice and two associate justices, with the office of the chief rotating year-to-year. The constitution also contained an extensive declaration of rights. Aside from that list, it addressed miscellaneous issues deemed significant, including the novel concept (derived from Spanish law) that property owned by a woman before marriage or acquired by her by gift or inheritance would remain hers.

The constitution was published in English and Spanish and submitted to the voters, who approved it on November 13, 1849, by 12,061 to 811. The legislature met in San Jose in December and submitted a petition for statehood. Congress, wracked by the slavery issue, did not accept until the Compromise of 1850 was worked out. The President signed the admission of California as the thirty-first state on September 9, 1850, and the constitution formally went into effect. It was amended only three times in the next thirty years.

There matters remained until the financial, political, and ethnic convulsions of the 1870s. The financial panic of 1873 brought unemployment and business losses. The immigration of a large cohort of Chinese brought racial tensions. The general political restlessness and increasing stridency of rhetoric contributed to political instability and the rise of new political associations, particularly the Workingmen’s Party, a pro-labor, anti-capitalist, anti-business, anti-Chinese party. In 1877, voters approved a call for a constitutional convention. Delegates were elected in June, 1879, and the convention gathered in Sacramento in September. The convention was three times as large as that of 1849, but it represented a non-Indian population that had grown from about 50,000 to nearly 900,000. It also took six months, rather than six weeks, to conclude.

It is not necessarily true that more time and man-hours produce a better result. The new constitution was an original work, but it was long, detailed, and prolix. A part of the problem was that the convention met during politically turbulent times and addressed “reforms” that should have been handled, if at all, through the legislative process. Another cause is that state governments exercise all legislative powers not surrendered to the general government. They are not governments of limited and delegated functions. Therefore, restrictions on state governments must be express. Today, the California constitution is even longer, due to the many amendments and the lingering effects of the Progressive Era changes described below. Even after voters in the 1960s and 1970s approved the removal of about 40,000 words by the Constitution Revision Commission, it is twelve times as long as the U.S. Constitution, making it among the most verbose state constitutions.

Representatives of the farm and labor interests, as well as of business, pushed through a common reform of the time, the creation of a state railroad commission with specified membership and powers. Labor got a maximum-hour provision for public works projects. A new state tax assessment board was created. Specific tax regulations to protect farmers were adopted. As would be expected, these regulations were easily circumvented by creditors, yet they remain part of the constitution. Corporations and banks were particular targets, with provisions passed to increase accountability of directors and shareholders. Labor law, business law, tax law, all matters that should be part of a system of codes brought into the fundamental organic law of government, the state constitution.

Finally, the Chinese. In a stark contrast to the current state government, a lengthy article of the constitution authorized the legislature to protect the state from “aliens, who are, or may become…dangerous or detrimental.” Chinese could not be employed by corporations or on public projects (except as punishment for crime, e.g. road gangs). It prohibited “Asiatic coolieism” as a form of human slavery. These provisions, predictably, were found unconstitutional by federal courts as violations of equal protection or of the federal government’s power over naturalization and immigration. The Constitution of 1879 was adopted by the underwhelming popular vote margin of 54-46 percent. In amended form, it remains the state’s constitution.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you. All of the essays educating us on how the various States were founded are interesting. With this one California joins the group with what promises to be some intrigue akin to a catastrophe that prudence advises to look the other way, but curiosity demands look anyway.

    Looking forward to part 2.



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