CHAPTER 2: THE CONSTITUTION
The framework or skeleton of custom, principles or laws by which each state and national government is called a constitution. Laws or statutes, to form the specifics of government then fill in the body of that basic frame.
DELAWARE STATE SEAL
The original design of the seal was adopted in 1777, and it was modified in 1793, 1847 and 1907. The seal includes a shield on which are represented a sheaf of wheat, an ear of corn and an ox, which symbolize farming in early Delaware. Flanking the shield are a farmer with a hoe, a rifleman, a ship under full sail and the state motto: “Liberty and Independence.”
History
The present revision of Delaware's Constitution, written in 1897, is the fourth in the state’s history. All (1776, 1792, 1831, 1897) were written by Constitutional conventions.1
The constitution of 1776 created the Delaware State, a weak executive office, a bicameral legislature and a judiciary. In 1792 a governor elected by the people was established, and in both 1831 and 1897 radical changes were made in the judiciary.2 Revisions made by the convention of 1897 included establishment of a Supreme Court, abolishment of payment of a county tax as a prerequisite for voting3 and provision for a board of pardons and for incorporation law, the latter destined to bring large revenues to the state.
Unlike the United States Constitution, which lists each amendment clearly and separately, amendments to the Delaware's Constitution are written directly into the main body of the document in a printing following the end of each two-year General Assembly. This practice makes study of amendments difficult because there is no comparison between the old and new versions. It can only be done through tedious comparisons of old printings with the new.
Far fewer amendments are passed than the number proposed. Since 1897 more than 88 amendments have passed; of these 25 dealt with judicial reform, 19 involved the legislative branch (6 of these increased legislative pay)4, 11 dealt with election procedures, 9 with revenue and taxation and 6 with the executive branch.
Present Constitution
Delaware's Constitution begins with a preamble, which recognizes all authority as being derived from the people. Its 17 articles are:
Article 1 Bill of Rights guarantees basic individual rights. Every state constitution contains a bill of rights. Many of these rights secured in the state constitution are guaranteed also by the first 10 amendments to the United States Constitution and are made applicable to the states by the 14th amendment. But, contrary to the assumption of many people, not all of the United States Bill of Rights is applicable to the states.
The 14th Federal amendment5 sets standards below which no statement may fall. The Supreme Court, interpreting the 14th amendment, has established that the terms “liberty” and “due process of law” guarantee to all citizens those rights provided by the first amendment, the freedom of religion, speech and press and the right of assembly; and by the fourth amendment, public trial with the assistance of counsel where the Supreme Court considers it essential; and by the eighth amendment, freedom from cruel and unusual punishment.
Some of the provisions which guarantee rights in federal courts but not in state or local courts are: the right to grand jury indictment and the privilege against self incrimination in the fifth amendment and the right to trial by jury guaranteed by the sixth and seventh amendments. There is no reason why a state should not extend the guarantees of personal and political freedom beyond the minimum required by the 14th amendment.
Rights protected by Delaware's constitution are substantive and procedural. Substantive rights, that protect individuals in their thoughts, are freedom of religion, assembly and press and security from search and seizure. Procedural rights that protect individuals who have been charged with violation of a law provide for trail by jury, right to bail, freedom from double jeopardy, protection against indictment by information, the right to a speedy trial and the right to counsel.
Article II Legislature vests legislative power in a bicameral General Assembly. The General Assembly makes the laws, sets the amount of money to be collected in taxes and decides how the money should be spent.
Article III Executive vests power in a governor and gives the powers, responsibilities and qualifications of the office. The line of succession to the office in the event of death or removal of the governor is lieutenant governor, secretary of state, attorney general, president pro tem of the Senate and speaker of the House. Qualifications for elected and appointed county officers are given, and dual office holding is prohibited in certain positions.
Article IV Judiciary provides for the composition, powers, and jurisdiction of the state courts and for the powers and limitations of the powers of judges.
Article V Elections provides instructions and detailed regulations on voting. 6
Article VI Impeachment and Treason gives the grounds for impeachment as treason, bribery, or high crime or misdemeanor in office. The house has the sole power of impeaching, but 2/3 of its members must agree; the Senate conducts the trial.
Article VII Pardons may be granted by the governor on recommendation of the Board of Pardons after a hearing. Members of the board are the Chancellor of the Court of Chancery, Lieutenant Governor, Secretary of State, Treasurer and Auditor of Accounts.
Article VIII Revenue and Taxation defines the power of the legislature to tax and sets some restrictions on spending. Taxes must be uniformly imposed but some property may be exempted. Revenue bills begin in the House, and borrowing (bond bill) must be approved by a three fourths vote in each house.
Article IX Corporations states that general incorporation laws must be passed by a two thirds vote in each house, each corporation must have a Delaware agent and corporate shares owned by non-Delawareans may not be taxed by Delaware.
Article X Education provides for the establishment and maintenance of compulsory, free, public educational facilities. Money for teachers' salaries and books must be equitably apportioned among the counties. Funds must be used only for public schools except for transportation of students of nonpublic, nonprofit schools.
Article XI Agriculture establishes a State Board of Agriculture whose duties include disease prevention in plants and animals and planning for securing immigration of industrious and useful settlers to the state.
Article XII Health creates the State Board of Health with powers and duties to be set by law.
Article XIII Local Option gives each election district the right to decide whether alcoholic beverages may be sold in their district.
Article XIV Oath of Office gives the form of the oath to be taken by public officers and members of the General Assembly.
Article XV Miscellaneous provides for the following:
The Chancellors, Judges and Attorney General shall be the conservators of Peace throughout the state.
Receipts must be given for fees paid.
Court costs are not to be paid by the defendant if found not guilty.
No term of office can be extended nor can pay be reduced after election or appointment.
Public officers hold office until their successors qualify.
Public officers must behave themselves in office.
Justice of the Peace and judges of lower courts may indict on information7 ; persons accused of vote fraud may also be indicted on information.
Supplies or services for governmental operations must be obtained by contract to the lowest bidder and members of departments must not receive any personal gain from the contract.
The constitution must be prefixed to every codification of state law.
No citizen shall be prevented from holding public office because of his or her sex.
Article XVI Amendments and Convention establishes two methods for revising the constitution. The amendment procedure may be proposed in either house. A proposed amendment must be approved by two-thirds of all the members of each house. It must be published, in local newspapers of each county three months before the next general election. After the election, the amendment must again be proposed and passed for the second time by two-thirds of the members of each house. The amendment then becomes part of the constitution replacing the former language.
A constitutional convention may be called when two-thirds of the members of each house vote to submit the question to the voters. If the majority of the voters vote `yes' to holding a convention to revise the constitution, the General Assembly must make arrangements by the next session to provide for the election of delegates to such convention at the next general election. There must be 41 delegates; one from each representative district and two elected at large from each county8. They are to convene in September of the next year after election, and the constitution as written by this convention shall stand without further review or approval by the governor, General Assembly or the people9
Article XVII Continuity of Government provides for continuity of state and local government in emergency from disaster caused by enemy attack.
When speaking of the need for occasional constitutional revision, Thomas Jefferson once observed that he knew that "laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened...institutions must advance also and keep pace with the times." The National Municipal League in its Model State Constitution, from which this quote is taken, suggests that state constitutions which most closely follow the U.S. Constitution in simplicity forming a skeletal framework for government are those that work the best. Delaware's Constitution is in need of major10 revision because it is lengthy, containing much detail, which could and is defined by statute; its language is archaic11; some of its contents obsolete or irrelevant12; and some provisions were in direct conflict with the U.S. constitutional Law13.
Major efforts were made in 1967-74 to make major revisions by using the amendment method. Those efforts failed for many reasons including clerical errors, opposition to changes recommended by the Long Range Court's Planning Committee, and objections to making major changes by amendment rather than through constitutional convention. Since 1974, no further effort has been made to write a revised state constitution.
Sources:
Conrad, H.C. History of the State of Delaware
Constitution Revision Commission, side by side comparison and recordings of the deliberation of the Commission, February 1970.
Delaware Constitution 1897 with amended versions published in 1918, 1923, 1925, 1931, 1940, 1952, 1960, 1964 and 1975 Delaware Laws.
The Delaware Constitution 1897-1997 – The First 100 Years; Delaware Bar Association, Harvey Rubenstein, chair, Randy J. Holland, editor-in-chief, Delaware Supreme Court, provides extensive history and analysis, a copy of 1987 constitution, and listing of amendments.
Legislative Council, Division of Research
Liberman, Rosbrow and Rubenstein - The Delaware Citizen Legislative Council
Long Range Court's Planning Committee Report, February, 1973
Reed, H.C. and M.B. ed. - Delaware, A History of the First State
Scharf, J.T. - History of Delaware 1609-1888, 2 vol.
Constitutional Offices
Six state offices, 62 members of the General Assembly (21 in the Senate and 41 in the House), and 5 County Row Officers are required by the state constitution to be elected by Delaware voters. The Governor, Lt. Governor and Insurance Commissioner are elected in a presidential election year while the Attorney General, Auditor & Treasurer are elected in the alternate 2 years.
Elected State Officials
OFFICE |
TERMS & QUALIFICATIONS |
DUTIES |
SALARY |
General Assembly |
citizen, resident 3 years |
legislative |
$29,500 |
House |
24 years old, term 2 years |
+ expense of |
$6,500 |
Senate |
27 years old, term 4 years |
||
Governor |
citizen 12 years |
chief executive |
$107,100 |
Lieutenant Governor |
same as governor |
presides over Senate succeeds when governor no longer able to serve, votes to break tie |
$46,300 |
Attorney General |
lawyer, term 4 years |
heads Dept of Justice, legal advisor to governor & state agencies representing the State on all legal matters |
$102,500 |
Auditor |
term 4 years |
audits state finances |
$78,800 |
Insurance Commissioner |
term 4 years |
supervises insurance |
$78,900 |
Treasurer |
term 4 years |
supervises financial aspects |
$82,500 |
The makeup and functions of the General Assembly are described in Chapter 3: The Legislature. The duties and functions of the Governor and the Lieutenant Governor are described in Chapter 4: The Executive Branch.
The Department of Justice
The Department is headed by the Attorney General, a constitutional officer who is elected to a four-year term as the state's chief law enforcement and legal officer. He or she, assisted by a Chief Deputy, acts independently of other branches of government. The Attorney General supervises the following divisions:
The Administrative Division provides administrative and operational support to all Divisions of the Department in order to permit them to perform their duties as efficiently and effectively as possible. It provides counseling, information and assistance in immigration and naturalization matters; performs extraditions and processes gun permits through the State Detectives assigned to the Division.
The Appeals Division, with 7 full time attorneys, represents the State in criminal appeals in the Delaware Supreme Court and in the United States Supreme Court.
The Civil Division, with 57 full time attorneys headed by the State Solicitor, is responsible for providing legal services to the Governor and the General Assembly, as well as to officers, departments, boards, agencies, commissions, and instrumentalities of State government. Among other responsibilities, the Division provides formal and informal opinions of the Attorney General, represents the State’s interests in civil litigation, conducts administrative prosecutions, acts as counsel to administrative bodies, provides representation to the public in child support cases and in certain labor matters, and provides legislative drafting and review services for members of the General Assembly and State agencies.
The Criminal Division, with 57 full time attorneys headed by the State Prosecutor, prosecutes violations of criminal law statewide so that the ends of justice are best served; provides counseling, referral, notification and information services to victims and witnesses of crime; and provides legal assistance to other law enforcement agencies.
The Fraud Division, with 11 full time attorneys, administers investigation and prosecution of civil and criminal cases in areas of security, antitrust, consumer fraud, arson, medicaid fraud, and personal income.
Auditor of Accounts
The Auditor, with a staff of 51, audits all financial transactions of the State, examines records of state agencies, sees that all money collected has been deposited to the credit of the State, certifies the State’s General Purpose Financial Statements, and serves as a member of the Insurance Determination Committee and the Board of Pardons. The mission of the office is to audit, review and investigate services to ensure fiscal integrity, efficiency, economy and effectiveness in State government operations.
1-800-55-FRAUD http://www.state.de.us/auditor/default.shtml
Department of Insurance
The Insurance Department protects the public interest by regulating the insurance industry, licensing agents and brokers, enforcing the Unfair Practices Act as it relates to insurance and by reducing the occurrence of insurance fraud. The office consists of four divisions with a staff of 67 plus contracts to 60 outside experts. The four divisions are:
Bureau of Company Examination, Rehabilitation and Guaranty ensures reliable insurance coverage at reasonable rates.
Consumer Services and Investigation Division protects the welfare of insurance consumers.
Producer Licensing and Continuing Education Division ensures competency and ethical conduct by insurance agents, brokers, limited agents, adjusters, appraisers and consultants.
Fraud Prevention Bureau acts to reduce the cost of insurance fraud to consumers.
Consumer Services: 1-800-282-8611
Fraud: 1-800-632-5154
Elder Information: 1-800-336-9500
Treasurer
The Treasurer, with a staff of 26, is the State's bonding officer, custodian of and disburser of State funds, trustee of the school fund, and administrator of all State employee benefits. The Treasurer is a member of the Cash Management Policy Board, the Board of Pardons, the Delaware Economic and Financial Advisory Council, Group Health Insurance Committee, Group Insurance Committee, Deferred Compensation Council, Budget Commission, and Agricultural Lands Preservation Foundation.
1 The only referendum on a proposed constitution for Delaware was defeated in 1852.
2 An interesting feature of this constitution was the prohibition of slavery contained in the 26th article.
3 An education requirement was added for voting – a voter must be able to read the constitution of Delaware and be able to sign his name.
4 A 1975 amendment removed legislative pay from the constitution. The General Assembly immediately enacted themselves a pay raise from $6,000 to $9,000 per year.
5 Article XIV, Section I: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
6 In 1965, to conform to the U.S. Constitution, male was stricken as a requirement .
7 Information for an indictment can come from police or any one who feels justified in bringing charges.
8 The direction for selection of delegates are in violation of the U.S. Supreme Court ruling on apportionment, Roman v. Sincock (known as ‘one man, one vote’). Since the U.S. Constitution and Supreme court decisions take precedence over state constitutions, 47 delegates would need to be elected rather than the 41 stated in the state constitution.
9 No General Assembly since 1897 has passed a bill which would place , on the ballot, the question “Should a constitutional convention be called?”.
10 Examples are: Detailed direction under which lotteries, bingo and gambling can occur, much of the Judiciary Article is covered by statute or court rules and penalties for election offenses, and Article III (Local Option) is covered by statute.
11 Sections remain giving the General Assembly authority to reorganize the Judiciary and abolish some courts. This took place in 1951 but the authorization still remains.
12 Cabinet secretaries now manage boards in charge of Agriculture and Health, mandated in Articles XI & XII.
13 Article X Section 3 Education stating "separate schools for white and colored children shall be maintained was deleted by amendment in 1995.
