The American Commonwealth. Viscount James Bryce

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СКАЧАТЬ the legislature, that they might reasonably fear it would neglect or spoil the work they desired to see done.

      Instead of being stimulated by this distrust to mend their ways and recover their former powers, the state legislatures fell in with the tendency, and promoted their own supersession. The chief interest of their members, as will be explained later, is in the passing of special or local acts, not of general public legislation. They are extremely timid, easily swayed by any active section of opinion, and afraid to stir when placed between the opposite fires of two such sections, as for instance, between the Prohibitionists and the liquor sellers. Hence they welcomed the direct intervention of the people as relieving them of embarrassing problems. They began to refer to the decision of a popular vote matters clearly within their own proper competence, such as the question of liquor traffic, or the creation of a system of gratuitous schools. This happened as far back as 1850–60. Presently they began to wash their hands by the same device of the troublesome and jealousy-provoking question where the capital of the state, or its leading public institutions, should be “located.” ⁴ In New York, the legislature having been long distracted and perplexed by the question whether articles made by convicts in the state prisons should be allowed to be sold, and so to compete with articles made by private manufacturers, recently resolved to invite the opinion of the multitude, and accordingly passed an act under which the question was voted on over the whole state. They could not (except of course by proposing a constitutional amendment) enable the people to legislate on the point; for it has been often held by American courts that the legislature, having received a delegated power of lawmaking, cannot delegate that power to any other person or body.⁵ But they could ask the people to advise them how they should legislate; and having obtained its view in this manner, could pass a statute in conformity with its wishes.

      The methods by which legislative power is directly vested in the American voters are four. The first is the enactment or amendment by them of a constitution. Here the likeness to the Swiss referendum is close, because the particular provision to be enacted is first drafted and passed by the convention or legislature (as the case may be) and then submitted to the people. How wide the scope of this method is will be realized by one who has followed the account already given of the number and variety of the topics dealt with by state constitutions.

      It is not uncommon for proposals submitted by the legislature in the form of constitutional amendments to be rejected by the people. Thus in Indiana, Nebraska, (twice in) Ohio, and Oregon, the legislature submitted amendments extending the suffrage to women, and the people in all four states refused the extension. So West Virginia by her Constitution of 1872, and South Dakota by hers of 1889, submitted proposals for proportional representation, which failed of acceptance.⁶

      The second method is the submission to popular vote, pursuant to the provisions of the constitution, of a proposal or proposals therein specified. If such a proposal has been first passed by the legislature, we have here also a case resembling the Swiss referendum. If, however, the legislature have not given their decision on the proposal, but the popular vote at the polls takes place in obedience to a direction in that behalf contained in the constitution, this is 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 СКАЧАТЬ