The American Commonwealth. Viscount James Bryce
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and sent to all the communes of the Republic, whose primary assemblies shall be convoked to vote upon it, in case objections to it have been raised by one-tenth of these primary assemblies in a majority of the departments. In recent times the plan has become familiar by its introduction, not only into most of the cantons of Switzerland, but into the Swiss Federal Republic, which constantly applies it, under the name of referendum, by submitting to the vote of the people laws passed by the federal legislature.2
In Britain the influence of the same idea may be discovered in two phenomena of recent years. One is the proposal frequently made to refer to the direct vote of the inhabitants of a town or other local area the enactment of some ordinance affecting that district: as, for instance, one determining whether a rate shall be levied for a free library, or whether licences shall be granted for the sale, within the district, of intoxicating liquors. This method of deciding an issue, commonly known as local option, is a species of referendum. It differs from the Swiss form, not merely in being locally restricted, but rather in the fact that it is put to the people, not for the sake of confirming an act of the legislature, but of deciding whether a particular act shall be operative in a given area. But the principle is the same; it is a transference of legislative authority from a representative body, whether the parliament of the nation or the municipal council of the town (as the case may be), to the voters at the polls.
The other English illustration may seem far fetched, but on examination will be seen to involve the same idea. It is now beginning to be maintained as a constitutional doctrine, that when any large measure of change is carried through the House of Commons, the House of Lords has a right to reject it for the purpose of compelling a dissolution of Parliament, that is, an appeal to the voters. The doctrine is as warmly denied as it is asserted; but the material point is that many educated men contend that the House of Commons is not morally, though of course it is legally, entitled to pass a bill seriously changing the Constitution, which was not submitted to the electors at the preceding general election. A general election, although in form a choice of particular persons as members, has now practically become an expression of popular opinion on the two or three leading measures then propounded and discussed by the party leaders, as well as a vote of confidence or no confidence in the ministry of the day. It is in substance a vote upon those measures; although, of course, a vote only on their general principles, and not, like the Swiss referendum, upon the statute which the legislature has passed. Even therefore in a country which clings to and founds itself upon the absolute supremacy of its representative chamber, the notion of a direct appeal to the people has made progress.3
In the United States, which I need hardly say has in this matter been nowise affected by France or Switzerland or England, but has developed on its own lines, the conception that the people (i.e., the citizens at large) are and ought of right to be the supreme legislators, has taken the form of legislation by enacting or amending a constitution. Instead of, like the Swiss, submitting ordinary laws to the voters after they have passed the legislature, the Americans take subjects which belong to ordinary legislation out of the category of statutes, place them in the constitution, and then handle them as parts of this fundamental instrument. They are not called laws; but laws they are to all intents and purposes, differing from statutes only in being enacted by an authority which is not a constant but an occasional body, called into action only when a convention or a legislature lays propositions before it.
I have already explained the historical origin of this system, how it sprang from the fact that the constitutions of the colonies having been given to them by an external authority superior to the colonial legislature, the people of each state, seeing that they could no longer obtain changes in their constitution from Britain, assumed to themselves the right and duty of remodelling it; putting the collective citizendom of the state into the place of the British Crown as sovereign. The business of creating or remodelling an independent commonwealth was to their thinking too great a matter to be left to the ordinary organs of state life. This feeling, which had begun to grow from 1776 onwards, was much strengthened by the manner in which the federal Constitution was enacted in 1788 by state conventions. It seemed to have thus received a specially solemn ratification; and even the federal legislature, which henceforth was the centre of national politics, was placed far beneath the document which expressed the will of the people as a whole.
As the Republic went on working out both in theory and in practice those conceptions of democracy and popular sovereignty which had been only vaguely apprehended when enunciated at the Revolution, the faith of the average man in himself became stronger, his love of equality greater, his desire, not only to rule, but to rule directly in his own proper person, more constant. These sentiments would have told still further upon state governments had they not found large scope in local government. However, even in state affairs they made it (in the Northern states) an article of faith that no constitution could be enacted save by the direct vote of the citizens; and they inclined the citizens to seize such chances as occurred of making laws for themselves in their own way. Concurrently with the growth of these tendencies there had been a decline in the quality of the state legislatures, and of the legislation which they turned out. They were regarded with less respect; they inspired less confidence. Hence the people had the further excuse for superseding 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