« AnteriorContinuar »
residence in the county and the election district. Moreover, as the qualifications required of all the officers of the state, from the governor downward, are defined in the terms of the section on the qualifications of electors, it follows that any woman voter of New York will be eligible to hold any office to which she may be elected. By virtue of another provision of the constitution of that state, a constitutional amendment ratified by the people becomes effective on the first day of the year following the election at which the ratification was given. The women of New York may have the privilege of voting at the local option elections next April, but the general election in November, 1918, will afford them the first opportunity to exercise the full right of the franchise.
The same issue was presented to the voters in Ohio, at the recent election, but in a different form. The legislature had passed an act conferring upon the women of the state a limited right of suffrage, including the right to vote for presidential electors, following in this respect the example of Illinois. This was within the power of the lawmaking body and required no change in the constitution. But Ohio enjoys the privilege of the initiative and referendum, and the supreme court of the state decided that the suffrage act was subject to the suspensory provisions of the referendum clause in the constitution. A sufficient number of signatures to a referendum petition was secured, and this made necessary the submission to the voters at the November election the question whether they wished to repeal the law or allow it to stand.
Their declaration at the polls was unfavorable to its continuance. The act of the legislature was repealed, or rather annulled, by a decisive majority.
At the same election in Ohio a proposed amendment to prohibit the manufacture and sale of intoxicating liquors was defeated by the very narrow majority of 1,137 votes out of a total of 1,046,317. A similar amendment had been proposed to the voters of Iowa at an election held in the preceding month, and was rejected by a majority of 932 out of a total vote approximately half of that cast in Ohio. On the other hand, the prohibition amendment proposed in New Mexico at the November election was carried by a majority which is described as "overwhelming."
In Kentucky, by a vote of 49,958 against 30,180, a constitutional amendment was adopted which modifies the anti-trust or anti-monopoly provision of the constitution so as to permit the merger or consolidation of telephone systems. Competition between various independent lines, all serving the same territory, had resulted not only in conditions which were disastrous to the companies themselves, but in unnecessary duplication of investments, deterioration in the quality of the service, and hardship to business interests through the necessity of maintaining two or more telephones where one would amply serve the purpose. It appeared that there was a universal sentiment in favor of abolishing this wasteful system. The amendment authorizing the adjustment of the situation was submitted by the legislature with practical unanimity and was indorsed by
civic bodies and newspapers all over the state. It seemed not only safe but expedient to relax in this particular the severity of the provisions against monopoly, more especially as the doctrine that the charges of public-service
corporations may be regulated by law has come to be judicially recognized in Kentucy as elsewhere. It is therefore incomprehensible that 30,000 voters out of 80,000 should have registered their disapproval of the amendment.
The Case Against the Initiative and Referendum
The theory and practice of direct legislation by means of the initiative and referendum were made the subject of exhaustive discussion and argument at the hearings held before the committee of the constitutional convention in Massachusetts to which had been referred a proposal to incorporate these so-called agencies of popular government into the fundamental law of that state.
The proposed amendment was recommended to the convention by the committee, by a vote of eight members against seven. After long consideration by the convention, and after undergoing considerable modification there, it was adopted by the convention and will be submitted to the voters at the election in November, 1918. But the seven members of the committee who disapproved the plan united in the preparation of a very vigorous minority report, from which we extract the following paragraphs for the benefit of our readers:
"We regard the adoption of the initiative and referendum in any save the most carefully restricted form as in essence a complete subversion of our form of government and an abandonment of what the framers of the constitution of Massachusetts and that of the United States held to be the abso
lute necessities and fundamentals of American democracy. Amendment of the constitution by the initiative would certainly be wholly destructive. It has been well said by David Jayne Hill, that 'the American solution of the problem of reconciling government with liberty consisted in the acceptance of four fundamental ideas, which constitute the cornerstones of the structure which we now call our national constitution, namely: 1. Representative government; 2. Division of public powers; 3. Guaranty of personal immunities; and 4. Judicial protection of constitutional guaranties.' This is equally true of the constitution of Massachusetts. To admit amendment of the constitution by means of the initiative as proposed by the majority plan would, in the view of us all, endanger all these four cornerstones and in principle overthrow them. The plan offers only the slightest restriction to the operation of the initiative on the constitution; and it requires no gift of prophecy to foresee that one of the first uses of it will be to loosen and broaden the operation of the initiative itself."
"As applied to statutory legislation. the majority plan, even if there were no amendment of the constitution by initiative, is subject to many of the
same objections. It would add to representative government a new unrepresentative form, neither so adequate nor so effective for wise legislation or the welfare of all the interests of our citizens or the security of all rights. It would inevitably be applied to matters for which it is wholly unfitted, and it would tend to break down the value of the representative form. Only a plan so restricted in method and application that its sole use would be the expression of a real public opinion and a real public will, on subjects where no individual rights and liberties would be invaded, on subjects where the people can have a real opinion and will, where their opinion would be a genuine supplement and assistance to the work of the General Court, without diminishing the value and the essential nature of that work, could be justified. A majority of the voters-in a choice of officials, even a plurality—must be allowed to govern. Their right to do so does not rest on power to compel the minority to obey. It rests upon a mere practical necessity. When the voters have discharged their obligation to the whole people, to consider fairly, impartially, and intelligently the matters to be decided by their votes, their decision must be accepted as right and submitted to by the minority; otherwise order and government cease. But if in any case the majority of voters act hastily, without deliberation; thoughtlessly, without a deep sense of responsibility; selfishly, without consideration of the rights or interests of individuals or of the minority; or ignorantly, without knowledge of the true grounds or of the consequences of
their acts-then, in that case, the justification of majority rule is swept away and democracy becomes in that particular case a failure, and possibly a means of tyranny, the tyranny of the majority."
"The measure now presented by a majority of this committee provides for a fundamental and revolutionary change in altering this solemn compact between all the people and every individual citizen, in that by it a majority of the voters who may at any time vote upon a particular amendment are permitted, in spite of the protest and the adverse action of the representatives assembled in General Court of all the people in the commonwealth, to compel a change in the solemn compact or constitution which determines the right and liberties of all. This fundamental change should be clearly understood. Under the resolution reported, an amendment to the constitution initiated by petition, though twice rejected, disapproved, and condemned by the representatives of all the people, may nevertheless be forced upon the people by a majority vote of those who cast their ballots at the next election, though that majority may be only a minority of the whole number of voters. An organized minority may change the compact by which all have agreed to be bound, may impose new and different obligations upon all, may take away from them rights which are cherished and have been preserved to them by solemn covenant. Tyranny of the majority may be unlikely, but the only protection of the others is to make it impossible."
"The present constitution guarantees to every citizen the right to wor
ship God agreeably to the dictates of his own conscience. That right cannot be taken away from him under the present constitution except by the action of the representatives of all the people assembled in General Court in two successive years, followed by a confirming and ratifying vote of the people themselves. The advocates of this measure propose that, in spite of the refusal of the representatives of all the people, assembled in General Court, to deprive the individual of that right, a majority of the voters, not a majority of all the people, at any given election may so alter the constitution as to take away this right of freedom of worship. Because the voters now might do this, with the previous advice and approval of the sworn representatives of all the people in two successive General Courts, it is argued that a majority of the voters ought to have the same power without that advice and approval, but at the instigation of ir responsible petitioners. Again, the advocates of amendment to the constitution by the initiative openly avow and proclaim that it is within the purview of the measure they advocate to permit by a majority vote amendments of the constitution which will effect recall of judicial decisions and recall of judges, which may alter in a moment all that body of fundamental law which 137 years has built up to secure the individual in his personal and property rights, which may subject one class of the community and one geographical section of the commonwealth to the domination of another."
"Against these possibilities, nay, probabilities, the advocates of this
measure offer only the suggestion that we may rely upon the good sense of the majority. Some of the advocates of the initiative urge its adoption with the soothing assurance that it will be seldom used and its effect will be quite innocuous and little to be feared. But others solemnly assure us, upon a knowledge which they advise is based upon an intimate familiarity with the facts, that labor organizations, and the socially discontented and unfortunate, must have the initiative or they will eventually destroy the government. If the first assertion is true the measure is unnecessary; if the second is the fact, those who would destroy the government without the constitutional initiative would surely do so when its vast possibilities for destruction are placed firmly in their grasp. If a constitution means anything as a fundamental and organic law, if it is to protect the rights of individuals and minorities, if it is to be the assurance of wise, deliberate, intelligent legislation, it must have stability and permanence. It is dangerous to give power on the assumption that it will not be used, and if the radical and complete use of the power given by this measure is unwise and undesirable, it is the duty of the framers of a constitution to guard against the danger and not to recommend to the people the assumption of that power."
"Our objections to the majority plan in its application to the enactment of ordinary laws rest upon a different basis from our objections to it in its treatment of the constitution. In the latter case it is a question of principle, of duty; in the former, if there be no
amendment of the constitution by the initiative, it is a question rather of wisdom and expediency. Yet here also it must be kept clearly in mind that a successful democratic government requires real, deliberate, just, and intelligent public judgments. Nothing else is entitled to the name of 'public opinion' or of 'the will of the people;' nothing else can be justifiably enforced upon minorities or individuals. The question is: Will laws enacted by the mode proposed in the majority plan express the real opinion and will of the people better than laws enacted by chosen legislative representatives, under their conditions of duty and responsibility, of time and opportunity for investigation, consideration, debate, and amendment? We are not inclined to deny that there are instances of misconduct on the part of individuals in our legislature today, or to assert that the actions of all legislators can be freed from every unworthy influence. But we do assert, and in this we are supported by the testimony of many of the ablest and most trustworthy observers, of all shades of political opinion, that corruption and bribery of legislators in Massachusetts today is practically non-existent; that the large majority of our legislators are honest and faithful; that in character and intelligence they more than fairly represent the average of their constituents; that the illegitimate and selfish influence of capital and special interests is rapidly and steadily growing less, and rarely today has any decisive force upon our legislation. It is doubtful whether it has anything like the force of the influence of organized labor."
"The majority plan opens up the whole field of legislation to the initiative action of groups and factions, of visionaries and of selfish interests, without the slightest requirement of real interest on the part of the public or real conviction that the legislature is misrepresentative; and any suggestion of a plan to make the operation of the initiative square with their own reasoning and their own grounds of complaint they classify as a 'joker' designed to make the initiative unworkable. And by 'unworkable' they seem to refer to any restrictions that will prevent the initiative from having the practical operation desired by their allies, whose ideals and objects differ so greatly from theirs. We are more inclined to accept the expressions of these less discreet allies as truly representing the result of the majority plan than those milder advices which suggest that it will seldom be used. Majority votes, under the plan proposed, will not be a real expression of public opinion. The text of a proposed law will be seen by few petitioners and read by an insufficient number of voters. There will be unfair advantage of certain petitioners, thoughtless signing of petitions, no limit of number of questions on the ballot, legislation by minorities, legislation by special interests. There is no assurance that the measures initiated will be within the scope of the interest or information of the average voter. They may be as abstruse, as complicated, as uninteresting, as full of tricks and jokers, as alluring a combination of what is popular with what is desired by selfish interests, as the proposers of the measures may choose.