The American Commonwealth. Viscount James Bryce
not strictly a referendum, but a case of legislation by the people alone, as if the voters of the state were all gathered in one assembly. Examples of this method, in both its forms, abound in the more recent constitutions. So far back as 1848 we find Wisconsin referring it to the voters to decide whether or no banks shall be chartered.7 Minnesota declares that a certain class of railway laws shall not take effect unless submitted to and ratified by a majority of the electors. And she provides, by a later amendment to her constitution, that “the moneys belonging to the internal improvement land fund shall never be appropriated for any purpose till the enactment for that purpose shall have been approved by a majority of the electors of the State, voting at the annual general election following the passage of the Act.” 8 In this last instance the referendum goes the length of constituting the voters the ultimate financial authority for the state, withdrawing from the legislature what might seem the oldest and most essential of its functions. So in not a few states no debts beyond a certain specified amount may be contracted except in pursuance of a vote of the people, and in others the rate of taxation is limited by fixing it at a certain ratio to the total valuation of the state, subject to a power to increase the same by popular vote. And in California no law changing the seat of the state government is valid unless approved by the people.
The third and fourth methods are more recent than either of the preceding and mark a further long step in the extension of direct popular action. One is the true Swiss referendum, i.e., the submission to the people for their approval or rejection of ordinary laws passed by the state legislature; the other the Swiss initiative, i.e., a power for a certain proportion of voters to propose either ordinary laws or amendments to the state constitution. The state which has gone farthest in this path is Oklahoma, admitted to the Union in 1907. In her constitution (§ 52), “the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the legislature (§ 53). The first power reserved by the people is the Initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure and fifteen per centum of the legal voters shall have the right to propose amendments to the Constitution by petition. . . . The second power is the Referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety) either by petitions signed by five per centum of the legal voters or by the Legislature as other bills are enacted.” The veto power of the governor is not to extend to measures voted on by the people. The referendum may be demanded against items or parts of a bill. Montana, Oregon, Nevada, South Dakota, and Utah have also referendum provisions generally similar.
In Oregon, the state which has made most use of these new methods, since the initiative and referendum were introduced in 1904, the people had down to the end of 1912 voted upon 76 initiative proposals, of which 33 were carried and 43 rejected; also upon 11 referendum proposals submitted either on demand of 5 per cent of the voters or referred to the voters by the legislature. Of these, 5 were carried and 6 rejected.9 In Oregon the governor has no veto on popular votes. Arguments prepared for and against proposals so submitted may be prepared and printed by the proposers and opponents, the cost of posting a copy to every voter being paid by the state.
The same principle of popular vote has been widely applied to local as well as to state government. Oklahoma applies it to every county and district, and to every municipality. Many recent constitutions provide that the approval of the people at the polls shall be needed in order to validate a decision of the city, or county, or school district, or township authority regarding borrowing, or taxing, or lending public funds to some enterprise it may be desired to assist. Licensing questions are usually left to popular determination alone, with no interference by the local representative authority: while as respects municipal government, California took the novel course of allowing cities of more than ten thousand inhabitants to make their own charters, by a drafting board of fifteen freeholders and a ratifying vote of the people, the state legislature having only a veto on the charter en bloc.10 Other states have followed.
The application of the same principle to smaller areas has the advantage of defeating many jobs which local councils might desire to put through, but may impose on the average voter a heavier burden than his knowledge and capacity fit him to bear. For instance at a municipal election in the city of Portland, Oregon, in June 1909, the elector had to decide not only between twenty-five candidates for six offices, but also to vote on thirty-five distinct and separate legislative propositions, some of them relating to matters of small administrative detail.11
Thus the ancient scheme of vesting ordinary legislative power, as well as constitution-making power, in the whole body of citizens has been now (1913) adopted by seventeen states and seems likely to in other states also, for it finds favour as a legitimate development of the principle of popular sovereignty. It is advocated with special zeal by many of the leaders of the Labour party or those who promote such legislation as that party desires.
What are the practical advantages of this plan of direct legislation by the people in its various forms? Its demerits are obvious. Besides those I have already stated, it might be expected to lower the authority and sense of responsibility in the legislature; and it refers matters needing much elucidation by debate to the determination of those who cannot, on account of their numbers, meet together for discussion, and many of whom may have never thought about the matter. These considerations will to most Europeans appear decisive against it. The proper course, they will say, is to improve the legislatures. The less you trust them, the worse they will be. They may be ignorant; yet not so ignorant as the masses.
But the improvement of the legislatures is just what the Americans despair of, or, as they would prefer to say, have not time to attend to. Hence they fall back on the direct popular vote as the best course available under the circumstances of the case, and in such a world as the present. Though some claim that it has an educative effect on the people, this is not the argument chiefly employed to advocate it. The ground taken is rather this, that the mass of the people are equal in intelligence and character to the average state legislator, and are exposed to fewer temptations. The legislator can be “got at,” the people cannot. The personal interest of the individual legislator in passing a measure for chartering banks or spending the internal improvement fund may be greater than his interest as one of the community in preventing bad laws. It will be otherwise with the bulk of the citizens. The legislator may be subjected by the advocates of women’s suffrage or liquor prohibition to a pressure irresistible by ordinary mortals; but the citizens are too numerous to be all wheedled or threatened. Hence they can and do reject proposals which the legislature has assented to. Nor should it be forgotten that in a country where law depends for its force on the consent of the governed, it is eminently desirable that law should not outrun popular sentiment, but have the whole weight of the people’s deliverance behind it.12
A brilliant, though severe, critic of Canadian institutions deplores the want of some similar arrangement in the several provinces of the dominion. Having remarked that the veto of the lieutenant-governor on the acts of a provincial legislature is in practice a nullity, and that the central government never vetoes such acts except where they are held to exceed the constitutional competence of the legislature, he urges that what is needed to cure the faults of provincial legislation is to borrow the American plan of submitting constitutional amendments (and, it may now be added, laws also) to popular vote. “The people cannot be lobbied, wheedled, or bull-dozed; the people is not in fear of its re-election if it throws out something supported by the Irish, the Prohibitionist, the Catholic, or the Methodist vote.” 13
If the practice of recasting or amending state constitutions were to grow common, and if the initiative and referendum were to grow common, one of the advantages of direct legislation by the people would disappear, for the sense of permanence would be gone, and the same mutability which is now possible in ordinary statutes would become possible in the provisions of the fundamental law, the habit of passing ordinary laws under momentary impulse might prove mischievous. But this fault of small democracies,14 especially when ruled by primary assemblies, is unlikely to recur in large democracies, such as most states have now become, nor does it seem to be on the increase among them. Reference to the people, therefore, acts