The American Commonwealth. Viscount James Bryce

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      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 as a conservative 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 СКАЧАТЬ