The American Commonwealth. Viscount James Bryce
force; that is to say, there may be occasions when a measure which a legislature would pass, either at the bidding of a heated party majority or to gain the support of a group of persons holding the balance of voting power, or under the covert influence of those who seek some private advantage, will be rejected by the whole body of the citizens because their minds are cooler or their view of the general interest less biased by special predilections or interests.
In England, and indeed in most European countries, representative government has been hitherto an institution with markedly conservative elements, because the legislating representatives have generally belonged to the wealthy or well-born and educated classes, who, having something to lose by change, are disinclined to it, who have been looked up to by the masses, and who have been imperfectly responsive to popular impulses. American legislatures have none of these features. The men are not superior to the multitude, partly because the multitude is tolerably educated and tolerably well off. The multitude does not defer to them. They are horribly afraid of it, and indeed of any noisy section in it. They live in the breath of its favour; they hasten to fulfil its behests almost before they are uttered. Accordingly an impulse or passion dominant among the citizens may tell at once on the legislature, and find expression in a law, the only checks being, not the caution of that body and its willingness to debate at length, but the power of some powerful group to stop a measure it dislikes, or possibly, the wisdom of a strong governor who may veto a bill which he thinks the people ought to have more time to consider. It may also happen that the legislature proves incapable of embodying in a practical form the wishes manifested by the people. Hence in the American states representative government has by no means that conservative quality which Europeans ascribe to it, whereas the direct vote of the people is the vote of men who are generally better instructed than the European masses, more experienced in politics, more sensible of their interest in the stability of the country. In its effect upon the state legislature, the referendum may therefore, in some states at least, be rather a bit and bridle than a spur. But in the new communities of the West it is more likely to be used as a means of effecting changes which they do not expect to get so speedily from the legislature in the drastic form and with the promptitde which they desire.
This method of legislation by means of a constitution or amendments thereto, arising from sentiments and under conditions in many respects similar to those which have produced the referendum in Switzerland, is an interesting illustration of the tendency of institutions, like streams, to wear their channels deeper. A historical accident, so to speak, suggested to the Americans the subjection of their legislatures to a fundamental law; and after a while the invention came to be used for other purposes far more extensively than its creators foresaw. It became, moreover, serviceable in a way which those who first used it did not contemplate, though they are well pleased with the result. It acts as a restraint not only on the vices and follies of legislators, but on the people themselves. Having solemnly bound themselves by their constitution to certain rules and principles, the people come to respect those principles. They have parted with powers which they might be tempted in a moment of excitement, or under the pressure of suffering, to abuse through their too pliant representatives; and although they can resume these powers by enacting a new constitution or amending the old one, the process of resumption requires time, and involves steps which secure care and deliberation, while allowing passion to cool, and the prospect of a natural relief from economic evils to appear. Thus the completeness and consistency with which the principle of the direct sovereignty of the whole people is carried out in America has checked revolutionary tendencies, by pointing out a peaceful and legal method for the effecting of political or economical changes. So much may be said as to the states that have remained content with the process of legislation by amendments in constitutions. But now some of the more experimentally minded states have gone further. They have simplified the process of direct popular legislation by getting rid of the machinery of a convention and of legislatively drafted amendments, and they empower the people to vote directly on whatever proposal a percentage of the citizens may propose or whatever law an even smaller percentage may require to have submitted for the expression of the people’s will. The initiative and referendum are natural developments of the process which began with the introduction into constitutions of what were really ordinary laws, and no one can tell how far the new movement may spread.
State constitutions, considered as laws drafted by a convention and enacted by the people at large, are better both in form and substance than laws made by the legislature, because they are the work of abler, or at any rate of honester, men, acting under a special commission which imposes special responsibilities on them. The appointment of a constitutional convention excites general interest in a state. Its functions are weighty, far transcending those of the regular legislature. Hence some of the best men in the state desire a seat in it, and, in particular, eminent lawyers become candidates, knowing how much it will affect the law they practise. It is therefore a body superior in composition to either the Senate or the House of a state. Its proceedings are followed with closer attention; and it is exempt from the temptations with which the power of disposing of public funds or public utilities bestrews the path of ordinary legislators; its debates are more instructive; its conclusions are more carefully weighed, because they cannot be readily reversed.15 Or if the work of altering the constitution is carried out by a series of amendments, these are likely to be more fully considered by the legislature than ordinary statutes would be, and to be framed with more regard to clearness and precision.
In the interval between the settlement by the convention of its draft constitution, or by the legislature of its draft amendments, and the putting of the matter to the vote of the people, there is copious discussion in the press and at public meetings, so that the citizens often go well prepared to the polls. An all-pervading press does the work which speeches did in the ancient republics, and the fact that constitutions and amendments so submitted are frequently rejected, shows that the people, whether they act wisely or not, do not at any rate surrender themselves blindly to the judgment of a convention, or obediently adopt the proposals of a legislature.
These merits are indeed not always claimable for conventions, or, in particular, for the more recent constitutions they have framed, much less for individual amendments. The Constitution of California of 1879 (whereof more in a later chapter) is an instance to the contrary; nor have the subsequent conventions even of such old states as Louisiana and Kentucky shown all the judgment that the problems before them required. But a general survey of this branch of our inquiry leads to the conclusion that the peoples of the several states, in the exercise of this their highest function, have not, on the whole, shown much of that haste, that recklessness, that love of change for the sake of change, with which European theorists, both ancient and modern, have been wont to credit democracy; and that the method of direct legislation by the citizens, liable as it doubtless is to abuse, causes, in the present condition of the states, fewer evils than it prevents.
It would doubtless be better, if good legislatures were attainable, to leave the enactment of what are really mere statutes to the legislature, instead of putting them in a constitution; and the initiative is a supersession of the legislature which tends even more to reduce its authority. But if good legislatures are unattainable, if it is impossible to raise the Senate and the House of each state above that low level at which (as we shall presently see) they now stand, then the system of direct popular action may be justified at least in some communities as a salutary effort of the forces which make for good government, opening for themselves a new channel.
In making the referendum and initiative parts of the regular machinery of government instead of applying the popular vote only to the amendment of constitutions, Oregon, Oklahoma, and the other Western states above referred to, have taken what may prove to be a momentous new departure, for the will of the sovereign people can through these methods express itself far more promptly and easily than heretofore. Some American publicists argue that to empower the people of a state to set aside their legislature when they are so disposed is virtually to abandon that “republican form of government” which was in 1787 supposed to be identical with a representative form. This contention ceases to be plausible when it is remembered that the oldest republics in the world, and many of the most famous, were ruled by primary, not by representative, assemblies. A more serious question has been raised by those who doubt the wisdom of arrangements that leave so much to the vote