Some Original and Peculiar Features in the Nebraska Constitution

• Date: 01 May 1900
• Author: Charles Sumner Lobingier
• Published date: 01 May 1900
• DOI: 10.1177/000271620001500306
• Subject Matter: Articles

I2I
SOME ORIGINAL AND PECULIAR FEATURES IN THE NEBRASKA
CONSTITUTION.
1
It might seem, at first thought, that a young commonwealth like
Nebraska would have no original or peculiar features in its funda-
mental law. Constitution making had been in progress, even in
America, for about a century before the first convention assembled for
that purpose within the present boundaries of Nebraska. Moreover,
the political ideas which form the subject-matter of most constitutions
had been wrought out through a long period of European civic devel-
opment before the New World history had even begun. One might
expect to find, therefore, that the Nebraska constitution is but a copy of
similar instruments which preceded it. In reality, however, the fun-
clamental law of this state contains a number of important provisions
which appear to be original and which afford an interesting field for
investigation by the jurist and the student of legal systems.
The bill of rights is the oldest part of existing constitutions. Many
of its clauses are exact reproductions of the instrument of the same
name which marked the successful issue of the English revolution.
Still other provisions find their origin as far back as Magna Charta.
In this part of our constitution we might least expect to find original-
ity ; and yet our bill of rights provides its own rule of construction by
means of
a clause which is different from every other state constitution
which I have found except one.
It is commonly said that the canons of construction for federal and
state constitutions are directly opposite,-that the federal instrument is
a grant and confers no powers not expressly mentioned, while a state
constitution is a limitation and passes all power not expressly retained.
2
To this doctrine, so well established elsewhere, our bill of rights
affords an exception. For the last clause of this part of our funda-
mental law is as follows : &dquo; This enumeration of rights shall not be
construed to impair or deny others, retained by the people, and all
power not herein delegated, remains with the people. (Art. i, Sec. 26.)
The significance of this provision has, I think, been generally over-
looked. Literally applied it would require the same rule of strict
construction for both our federal and state constitutions; it would give
the legislature, as well as the other branches of the state government,
no implied powers while every legislative act would need support in
some express clause of the constitution. I have not observed, how-
ever, that any such rule has been followed in practice. The construc-
1 A
paper read before the Nebraska State Historical Society at its annual meet-
ing, January, I899.
2 See the article "Constitutional Law," 6 Am. & Eng. Encyclopedia of Law
(second edition), pp. 933, 934.

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