The Atlantic Monthly/Volume 97/Constitution-Mending and the Initiative
CONSTITUTION-MENDING AND THE INITIATIVE
BY FRANK FOXCROFT
The equal-suffrage referendum which is to be taken in Oregon this month, together with several others of minor importance, has an interest wholly independent of the question immediately at issue. That has been so fully discussed of late years that there is little new to be said on either side. In Oregon it was thoroughly threshed out six years ago, when an equal-suffrage amendment to the state constitution was submitted to the people in the old method, and was defeated at the polls.
But the Oregon referendum derives special significance from the fact that it is the first attempt in American political history to amend the constitution of a state by the direct initiative of the people, and without any intervention by the legislature. It is no new thing to apply the principle of the referendum to state and local questions. The submission of any constitutional amendment to ratification or rejection by the people is itself a referendum. But the new process in Oregon is unique in this: that the initiative is not in the legislature, but with the people. Hitherto, if one principle more than another has found universal acceptance, it is that the fundamental law of the nation and of the states should be secure against abrupt and ill-considered change. In the state of Oregon itself, prior to the adoption of the initiative-referendum amendment to the constitution in 1902, time and deliberation were required for amending the constitution. When a resolution proposing an amendment was introduced in a legislature, it was referred to a com^ mittee. Hearings were had upon it, and the proposal was fully discussed in all its bearings, first in the committee, and later in each branch of the legislature. When it came before the legislature for action, it was defeated unless it received the votes of a majority of each house, and this not merely a majority of those voting, but of all the members elected. If it passed this ordeal, it must be approved by similar majorities in the next legislature before it was sent to the people. There were other checks upon hasty action. Only two amendments could be submitted to the people at any given election. For ratification, it was required that an amendment should receive a majority, not alone of the votes cast upon the proposition, but of the electors voting at the election. At the election in 1900, the vote on the equalsuffrage amendment was: affirmative, 26,265; negative, 28,402. But if these figures had been reversed, the amendment would have been defeated notwithstanding: for the number of votes cast for justice of the Supreme Court at the same election was 81,950. The ratification of the amendment, therefore, would have required an affirmative vote of 40,976.
If the friends of equal suffrage in Oregon were working now under the old system, they could not, under the most favorable conditions, achieve their end before June, 1910. Their proposal would have to run the gauntlet of the legislature convening in January, 1907, and again of that convening in January, 1909, and could not be submitted to the people until the general election in June, 1910. Contrast with this the speed attained under the initiative-referendum. All that is required to set the machinery of amending the constitution in motion is a petition signed by qualified electors to a number equal to eight per cent of the vote cast at the last preceding general election for justice of the Supreme Court. In the present instance, this number was 9,904. The petitioners, under the constitution, had until February 4 to file their petitions; and the whole process, from that date to the day of the general election (after which, if a majority of those voting on the proposition vote in the affirmative, the amendment becomes immediately effective), requires only four months. This, certainly, is headlong speed in constitution-mending, and even those Americans who are not ultra-conservative may be pardoned if they feel a little nervous over the possibilities which it involves.
The initiative was applied to the direct enactment of laws in Oregon two years ago. The same number of voters are required as signers to the petitions as in the case of an amendment to the constitution. Three measures were thus brought before the people in June, 1904. One was a proposal for a direct-primary law; another, for a local-option law; and a third for the payment of a salary to the state printer instead of fees. The first two measures had been repeatedly defeated in the legislature; but they were enacted by the people at the polls, the first by a vote of more than 5 to 1, and the second by a vote of nearly 4 to 1. The third proposal was defeated.
The constitutionality of the initiative-referendum was affirmed by the Supreme Court of Oregon in December, 1903. The case was that of Kadderly vs. Portland, and the decision of the court may be found in the 44th volume of the Oregon Reports. The court dismissed summarily certain contentions which had been raised regarding the conditions under which the vote upon the ratification of the initiative-referendum amendment to the constitution had been taken; and, with regard to the contention that it was in violation of the provision of the Federal Constitution which guarantees a republican form of government to the states, it ruled that, under the amendment, the people had simply reserved to themselves a larger share of legislative power, but they had not overthrown the republican form of the government, or substituted another in its place. Incidentally, the court delivered itself of two opinions, which have attracted little attention, but which materially restrict the operation of the amendment, and suggest the possibility of interesting complications in the future. These opinions relate to the application of the initiativereferendum to the enactment of laws. The court ruled, first, that laws proposed and enacted by the people under the initiative clause of the amendment "are subject to the same constitutional limitations as other statutes, and may be amended or repealed by the legislature at will;" and, second, that the provision in the amendment to the effect that "the veto power of the governor shall not extend to measures referred to the people " must necessarily "be confined to the measures which the legislature may refer, and cannot apply to acts upon which the referendum may be invoked by petition." The court went on to say that, unless the governor has a right to veto any act submitted to him, except such as the legislature may specially refer to the people, "one of the safeguards against hasty or ill-advised legislation which is everywhere regarded as essential is removed—a result manifestly not contemplated by the amendment." It may be doubted whether the court, in the words just quoted, did not impute to the promoters of the Oregon initiative a larger measure of prudence and conservatism than they actually possessed. There is little reason to believe that they anticipated or desired that the initiative-referendum, as applied to direct legislation, should be subject to the veto of the governor or to amendment or repeal by the legislature. In confirmation of this view, it is to be noticed that the initiative-referendum amendment approved by the Montana legislature last year, and to be submitted to the vote of the people next November, expressly declares that "the veto power of the governor shall not extend to measures referred to the people by the legislative assembly, or by initiative-referendum petitions" It is probable that the framers of the Oregon amendment believed that the phrase which they used gave them equal protection against executive interference.
One provision of the law enacted by the Oregon legislature in 1903, to make effective the initiative-referendum amendment, and to regulate elections under it, deserves all praise. Manifestly, if laws are to be enacted and state constitutions amended in this helter-skelter fashion, with all discussion by legislatures eliminated, it is important that some means should be taken to insure the enlightenment of voters regarding the measures upon which they are called to vote. Something may be done through public meetings, and something through the newspapers. But not all voters can be induced to attend public meetings, and not all habitually read the newspapers. In any political campaign in any state, any political party would be glad to be assured of an opportunity to place an argument in favor of its principles in the hands of every voter. Precisely this opportunity is afforded under the act of the Oregon legislature. Not less than three months before an election at which any proposed law or amendment is to be submitted to the people, the secretary of state is required to cause to be printed a true copy of the title and text of each measure to be submitted, with its number and the form in which the question will be printed on the official ballot. The persons, committees, or duly authorized officers of any organization filing any petition for the initiative are given the right to place with the secretary of state, at least five months before the election, any pamphlets advocating such measure. Also, not less than four months before the election, any person, committee, or organization opposing any measure is given the right to place with the secretary of state for distribution pamphlets presenting arguments against the proposition. There are minute directions as to the size of the pamphlet pages, the size and form of type, and even the quality and weight of the paper; but if these conditions are complied with, and enough pamphlets are furnished to admit of giving one to every registered voter of the state, the law becomes mandatory upon the secretary of state. It is directed that he "shall cause one copy of each of said pamphlets to be bound in with his copy of the measures to be submitted as herein provided." Nothing is left to the discretion or caprice of the secretary. The persons or committees interested in the pending propositions furnish their arguments, pro or con, suitably printed in sufficient number at their own cost, and the state does the rest. The pamphlets are distributed by the secretary of state to the county clerks, and by them to the registration officers, and it is made the duty of these officers, without additional compensation for the service, to give one of the pamphlets to every voter when he registers. In a state like Oregon, of comparatively sparse and scattered population, it is a great thing to be assured that every voter called upon to vote upon a proposed law or amendment shall have in his possession weeks before the vote is taken arguments carefully prepared by those most interested, setting forth the reasons for and against the proposition. Even with these provisions, a certain advantage necessarily remains with those who propose the measure: for the organization necessary to enable them to secure the requisite number of signers to their petitions makes it easier for them—under ordinary circumstances—than for their opponents to prepare a pamphlet, and to meet the cost of printing more than one hundred thousand copies of it to place in the hands of the secretary of state. It is quite conceivable that the negative side might sometimes go by default, and the voters be furnished only with arguments for the affirmative. But this, at least, has not been the case as regards the pending question. The perplexed Oregon voter, called upon by passionate appeals to enfranchise the women of the state, was given by his registration officer a pamphlet of five pages urging upon him the demands of the women who want the ballot, and with it a pamphlet fully as earnest, and more than three times as long, presenting the case of those women, professing to speak for the majority of their sex, who not only do not want the ballot, but entreat men not to thrust it upon them, on the ground that to do so "would not only be an injustice to women, but would lessen their influence for good, and would imperil the community." The pamphlet in the affirmative is presented by the Oregon Equal Suffrage Association, that in the negative by the Oregon State Association Opposed to the Extension of Suffrage to Women. Such a contrast and comparison of opposing views is at least educational, even if bewildering.
One obvious defect of the initiative is the absence of all supervision, or "editing," of proposals. They may be crudely drawn, they may be mutually conflicting, but the measures proposed must be sent to the people in precisely the form in which they are filed. The proposals to be voted on in Oregon this month afford no less than three instances of such confusion. The Willamette Development League proposes a bill to tax the gross earnings of telephone, telegraph, and express companies. The Grange proposes a similar bill. But in the first bill the tax is fixed at two per cent upon telegraph and express companies, and at one per cent upon telephone companies; while the other bill places it at three and two per cent respectively. What if both bills are adopted? The Development League, again, proposes a bill for levying a tax upon sleeping, dining, palace, oil, and refrigerator cars; the Grange proposes an altogether different method of levying such a tax. There is a wild conflict of opinion among lawyers as to the consequences if both bills should be adopted; and it is an open question whether the companies would not be compelled to pay a double tax. A third instance of direct conflict is found in two constitutional amendments, one proposed by the People's Power League, which puts the state printing wholly in the hands of the legislature, and one filed by the typographical unions, which makes the office a constitutional one, forbids all letting out of contracts, and looks to the ownership of a printing plant by the state. Confusion worse confounded would follow the adoption of both proposals.
Oregon was not the first state to incorporate the initiative and referendum in its constitution. South Dakota led the way in 1898. The process in that state, however, does not apply to amendment of the constitution, but to the enactment of laws. Five per cent of the electors may, by petition, require the legislature to enact any measure which they may propose, and to submit it to a referendum. A like number of electors may require the legislature to submit to a referendum any measure which it may, at its own initiative, have enacted. The Montana initiative-referendum amendment, now pending, expressly excepts proposals for amendment of the constitution from the operation of the system. The Missouri initiative-referendum amendment, ratified by the people in 1904, admits of the amendment of the constitution by the initiative of the people, but is more severe in its requirements than the Oregon amendment. Ten per cent of the electors may, by signed petitions, require the legislature to submit to a referendum any measure which it may have enacted; fifteen per cent may propose any law or the amendment or repeal of any law, and require a referendum on its proposal; and twenty per cent may propose any amendment to the constitution, and demand its submission to the vote of the people. It is required further in each case that the designated proportion of electors shall be recorded in the petitions from each congressional district. This is a provision in the interest of conservatism; for, before the condition can be met, it is necessary that any proposal shall find favor with ten, fifteen, or twenty per cent of the voters in each district, and lack of interest in any congressional constituency cannot be offset by enthusiastic support in others. Only a desire widely diffused among the people would be able to overcome this obstacle.
The present is an off-year in state legislation. In most of the states, the legislatures meet biennially, in the odd-numbered years. In most of the legislatures in session this year, however, the initiative-referendum in some form has been under consideration. In one state, Maryland, the proposal has taken the extreme form of intrusting the initiative, not only in the enactment of laws, but in the amendment of the constitution, to only five per cent of the electors. It is perfectly safe to predict that, in the thirty-five or forty legislatures which will be in session next year, advocates of the initiative-referendum will hold the centre of the stage. Woman suffragists, prohibitionists, single-taxers, socialists, and other groups of voters who despair of getting their special propositions through the legislatures, will combine to press the system of direct legislation and constitution - mending, which gives each of them a chance; and they will be reinforced by amiable theorists who are attracted by the idea of securing for the people a larger measure of power.
In some quarters, it is treated as a kind of treason to popular government to express doubt of the wisdom of such proposals. "Cannot the people be trusted? " it is asked. Doubtless they can. But it is for the interest of the people that proposals for new laws, and, still more, for changes in the fundamental law, should be scrutinized, sifted, and debated before they are put upon the statute-books or incorporated in constitutions. Under our system of government, no real demand of the majority of the people can go long unsatisfied. What the people really want, sooner or later they will get. But they will be no worse off if the concession of their demands is deferred long enough to allow time to consider whether the thing that is offered is really the thing that they want. If existing processes for the amendment of constitutions are slow and sometimes disappointing, they are at least safer than a system which allows only four months' time for so radical a change as that proposed in Oregon. Half unwittingly, we are drifting upon conditions which threaten revolutionary changes in our institutions. At the risk of whatever odium, conservative-minded folk should pull themselves together and inquire whether the time to resist these changes is not at the beginning rather than later on. If the extension of the initiative may not be checked, the provisions for its exercise may at least be safeguarded, and its operation may be made more orderly and deliberate.