CHAPTER XXIII

POPULAR CONTROL IN STATE GOVERNMENTS

MORE than half a century ago Carlyle said that whoever had occasion to write or speak in that day must take account of the fact that democracy had arrived; and an eminent English publicist of our time, Mr. G. Lowes Dickinson, has restated the doctrine in a little more concrete form when he says, "Governments in every civilized country are now moving towards the ideal of an expert administration controlled by an alert and intelligent public opinion." The awakening of this alert and intelligent public opinion is the problem of education in its broadest sense; but in order to make this opinion effective in controlling legislatures and executives it is necessary to devise electoral machinery which will work with as little friction and waste of public spirit as possible.

The Amending System

As we have seen, the metes and bounds of state government are set in the constitution, and to enable popular will to alter this fundamental law from time to time, as new conditions arise, some regular legal process of amendment is indispensable. The exact method varies in character and operation from state to state, but there are certain general principles and tendencies which are now well established.

I. In the first place, about two-thirds of the states' provide for amendment by a convention composed of delegates chosen by the voters, and many constitutional lawyers hold that the legislatures of the remaining states can call conventions under their general legislative powers. A few states, including New York, provide that the question whether a constitutional con

1All except Arkansas, Connecticut, Indiana, Massachusetts, Mississippi, New Jersey, North Dakota, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, and Louisiana. See Professor J. W. Garner's article in the Ameri can Political Science Review for February, 1907.

vention shall be held must be referred to popular vote at stated intervals; and New York also gives the legislature the power to submit the proposition to call a convention at any time it may see fit. More than one-half of the states, however, merely authorize the legislature to determine, at its discretion, when a constitutional revision is advisable, submit the question to popular vote, and on approval make provision for the election of delegates. Most of these constitutions require an extraordinary majority in the legislature before the proposition of calling a convention can be submitted to the electorate; and some of them, in addition, require the approval of a majority of all those voting at some election. Wherever these two provisions are found in conjunction, it is well-nigh impossible to amend the constitution.

Very few of the state constitutions that provide for amendment through the convention system are explicit as to the methods by which the delegates shall be apportioned and elected. In this regard the constitution of New York is more satisfactory than that of most other states because it goes into greater detail. It provides that three delegates for each senatorial district and fifteen delegates-at-large shall be chosen by the voters; it prescribes the time at which the delegates shall convene; fixes the quorum at a majority; makes some provisions as to procedure; and concludes with the requirement that the constitution or amendments adopted by such convention must be submitted to popular ratification.

II. The second general method of amendment, to be found in all states except New Hampshire, including those which have the convention system as well, is through legislative action ratified by popular vote. In several of the states, as widely separated as Illinois, Kansas, Washington, California, and Mississippi, two-thirds of all the members elected to both houses of the legislature are required to initiate an amendment. A few states, among which are Florida and Ohio, fix the majority at three-fifths; while New York, Indiana, Minnesota, Wisconsin,

1 Only two commonwealths, Georgia and Maine, authorize the legislature by concurrence of two-thirds of both houses to call a convention without referring the question to popular vote.

2 Readings, p. 411. In 1910 a proposition was introduced into the New York legislature providing that a two-thirds vote of both houses (and a repeti

Tennessee, and some other commonwealths require only a simple majority. In about one-third of the states, including Massachusetts, New York, South Carolina, Vermont, Indiana, and Oregon, the constitution provides, in addition, that an amendment proposed by one legislature must be approved by the succeeding legislature before being submitted to the people. It is the common practice now to require an approval of only a majority of the popular vote cast on the proposition; but a few commonwealths stipulate that an amendment must receive a majority of all the votes cast at some state election in order to become a law.

III. The third mode of amendment, that of the initiative and referendum, is to be found in several states.1 For example, an amendment to the constitution of Oregon, ratified in June, 1902, expressly reserves to the people the power to propose amendments to the constitution and to approve or reject the same at the polls independent of the legislative assembly. It provides that eight per cent of the legal voters may propose an amendment by petition, and if the proposal, on its submission to popular ratification, receives a majority of all the votes cast thereon, it becomes a part of the fundamental law of the state. A somewhat similar method is in force in Oklahoma, but fifteen per cent of the voters must sign the petition to initiate a constitutional amendment, whereas only eight per cent are required to propose any ordinary legislative measure.

tion of the process) should be required to submit a constitutional amendment to the voters, and that for ratification an amendment must receive a majority vote of the electors voting for members of the legislature. In support of the measure, Mr. Dana, who introduced it, said: "For some time past, amendments to the Constitution have been passed by a very small vote in proportion to the total vote cast. At the last election only 81,517 votes out of a total vote of 318,035 in the City of New York, were cast for the constitutional amendment receiving the greatest number of votes, while in the rest of the state, out of a total of 702,965 votes, only 290,795 were cast for the amendment. This does not by any means express the will and desire of the people." The proposal was later modified to the effect that any amendment must be approved by at least 30 per cent of the vote for assemblymen.

For the Oklahoma system, see Readings, p. 413.

The Initiative and Referendum

The participation of the people in the making of constitutional law is not only on the increase,' but there is also a decided tendency to extend the power of the voters to ordinary legislation as well. Indeed, the constitution of Oklahoma provides that the style of all bills shall run "Be it enacted by the people of the state of Oklahoma."

As we have seen, the practice of even submitting constitutions to popular ratification was not one of the original devices of our constitutional system, only three of the eighteenth-century constitutions being submitted to the electorate for approval or rejection. Slowly, however, the idea came to be accepted that voters, in a final analysis, had the right to pass upon their own fundamental laws. The New York constitution of 1821 was referred to the electorate, and it further provided that amendments should likewise be submitted to the voters after having received legislative approval. By the middle of the nineteenth century the doctrine of the constitutional referendum was fairly fixed, and most of the constitutions since 1850, excepting those of Delaware (1897), Mississippi (1890), South Carolina (1895), and Virginia (1902), have been approved by popular vote.

The idea of referring such matters to the people was, however, not adopted without a strong opposition, which was based on the ground that a convention, duly chosen and solemnly deliberating, was the best institution for making fundamental laws, and that no further action was required. Even as late as 1894, Mr. Dean, speaking in the New York constitutional convention, declared that the practice of referring constitutions to the people merely encouraged cowardice on the part of the representatives and enabled them to shirk their own responsibilities by leaving the power of making the final decision to the electorate. But Mr. Dean's protest was in vain, for the constitution drafted by that body provided that all future amendments, whether by way of conventions or legislative enactment, should be submitted to popular approval.

The doctrine of popular referendum was also early extended

1 See above, p. 96.

"Record of the Constitutional Convention (1894), Vol. II, p. 801.

to several important matters besides constitutions and amendments. The courts have usually held that, in the absence of express constitutional warrant, the legislature has no power to refer general laws to the electorate; but some of them have maintained that it is proper to refer to the people the question of the time when a certain law shall go into effect. Under the cover of this legal theory several state prohibition laws have been referred to popular approval. The legislature of New York, in 1849, submitted the proposition of establishing free schools to the decision of the electors; and the question of woman suffrage was laid before the voters of Massachusetts in 1895. It is likewise common to require the reference of special financial measures to popular approval; for example, the constitution of New York fixes a certain debt limit, beyond which the legislature cannot go without receiving the approval of a majority of the electors voting on the proposition. The practice of referring local laws of a special character, such as those selecting county seats and changing county or city boundaries, was also adopted early in our history.

It was not such a long step, therefore, from these and similar practices, to the adoption of a complete system of initiative and referendum, whereby the voters may initiate any measure or require the referendum on any legislative act. Many causes are responsible for this extension of older practices. In some instances, legislators were only too glad to shirk their responsibilities by leaving certain questions to the decision of popular vote. The practice of enlarging the state constitutions so as to include provisions of a temporary and statutory, rather than a fundamental, character led to the breaking down of the old distinction between the solemn formulation of constitutional law and the enactment of mere statutes. Perhaps the most important reason, however, was a distrust in the legislature1a distrust that filled our state constitutions with long and detailed limitations on the powers of legislatures and finally ended, in several states, in the assumption of ultimate legislative authority by the voters.

It was under these circumstances that the initiative and referendum were adopted as remedies for our legislative evils. The system is a simple one. The initiative is a device whereby 2 Readings, p. 413.

1Readings, pp. 478, 483.