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14 Am. Law. 353 (1906)
Constitution Mending and the Initiative

handle is hein.journals/amlyr14 and id is 361 raw text is: THE AMERICAN LAWYER. 353 Constitution Mending and the Initiative. By Frank Foxcroft. Courtesy of The Atlantic Monthly. The equal-suffrage referendum which is to be taken in Oregon this month, together with several others of minor importance, has an interest wholly independent of the ques- tion immediately at issue.. That has been so fully dis- cussed of late years that there is little new to be said on either side. In Oregon it was thoroughly threshed out six years ago, when an equal-suffrage amendment -to the State Constitution was submitted to the people in the old method, and was defeated at the polls. But the Oregon referendum derives special significance from the fact that it is the first attempt in American polit- ical history to amend the constitution of a State by the direct initiative of the people, and without any intervention by the Legislature. It is no new thing to apply the principle of the referendum to State and local questions. The sub- mission of .any constitutional amendment to ratification or rejection by the people is itself a referendum. But the new process in Oregon is unique in this: That the initiative is not in the Legislature, but with the people. Hitherto, if .one principle more than another has found universal ac- ceptance, it is that the fundamental law of the Nation and of the States should be secure against abrupt and ill-con- sidered change. In the State of Oregon itself, prior to the adoption of the initiative-referendum amendment to the Constitution in 1902, time and deliberation were required for amending the Constitution. When a resolution pro- posing an amendment was introduced in a Legislature, it was referred to a committee. Hearings were had upon it, and the proposal was fully discussed in all its bearings, first in the committee, and later in each branch of the Legislature. When it eame before the Legislature for action, it was defeated unless it received the votes of a majority of each House, and this not merely a majority of those voting, but of all the members elected. If it passed this ordeal it must be approved by similar majorities In the next Legislature before it was sent to the people. There -were other checks upon hasty action. Only two amendments could be submitted to the people at any given 'election. For ratification, it was required that an amendment should re- ceive a majority, not alone of the votes cast upon the proposition, but of the electors voting at the election. At the election in 1900, the vote on the equal-suffrage amend- ment. was: Affirmative, 26,265; negative, 28,402. But If these figures had been -reversed, the amendment would have been defeated, notwithstanding, for the number of votes .cast for Justice of the Supreme Court at the same election was 81,950. The ratification of the amendment; therefore, would have required an affii.native vote of 40,976. If the friends of equal suffrage in Oregon were working ,now under the old system, they could not, under the most favorable conditions, achieve their end before June, 1910. Their proposal would have 'to -run the gauntlet of the Legis- lature. convening In January, 1907, and again of. that con- vening in January, 1909, and could not be submitted to the people until the general election In June, 1910. Contrast with this the speed attained under the initiative-referendum. All that is required to set the machinery of amending the Constitution In motion Is a -petition signed by qualified electors to a number equal to eight per cent of the vote ,cast.at the last preceding general election for Justice of the Supreme Court. 'In the present Instance, this number was 9,904. The petitioners, under thd Constitution, had until February 4 to file their petitions; and the whole process, from that date to the day of the general election (after which, if a majority of those voting on the proposition vote in the affirmative, the amendment becomes immediately effective), requires only four months. This, certainly, is headlong speed in constitution-mending, 'and even those Americans who are not ultra-conservative may be parooned if they feel a little nervous over the possibilities which It involves. iae initiative was applied to the direct enactment of laws in Oregon two years ago. The same number of voters are required as signers to the petitions as in the case of an amendment to the C6nstitution. Three measures were thus brought. before the people in June, 1904.. One was a proposal for a direct-primary law; another, for a local-option law; and a third for the payment of a salary to the state printer instead of fees. The first two measures had been repeatedly defeated in the Legislature; but they were enacted by the people at the polls, the first by a vote of more than 5 to 1, and the second by a vote of nearly 4 to 1. The third proposal was defeated. The constitutionality of the initiative-referendum was affirmed by the Supreme Court of Oregon in December, 1903. The case was that of Kadderly vs. Portland, and the decision of the court may be found in the 44th volume of the Oregon Reports. The court dismissed summarily. certain conten- tions which had been raised regarding. the conditions under which the vote upon the ratification of the initiative-referen- dum amendment to the Constitution had been taken; and, with regard to the contention that it was in violation of the provision of the Federal Constitution which guarantees a republican form of government to 'the States, it ruled that, under the amendment, the people had simply reserved to themselves a larger share of legislative power, but they had not overthrown* the republican form of the. govern- nment, or substituted another in Its place. Incidentally, the court delivered itself of two opinions, which have attracted little attention, but which materially restrict the operation of the amendment, and suggest the possibility of interesting complications in the future. These opinions relate to the application of the Initiative-referendum to the enactment of laws. The court ruled, first, that laws proposed and enacted by the people under .the initiative clause of the amendment are subject to the same constitutional limitations as other * statutes, and may be amended or repealed by the Legis- •lature at will; and, second, that the provision In the amend- ment to the effect that the veto power of the Governor shall not extend to measures referred to the people must neces- sarily be confined to the measures which the Legislature may refer, and cannot apply to acts upon which the refer- endum may be invoked by petition. The .court went on to say that, -unless the Governor has a right to veto any act submitted to him, except such as the Legislature may specially refer to the people, one of the safeguards against hasty or ill-advised legislation which Is everywhere regarded as essential is removed-a result manifestly not contem- plated by the amendment. It may be doubted whether the court, in the words just quoted, did not impute to the promoters of the Oregon initiative a larger measure of pru- dence and conservatism than they actually pbssessed. There

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