Читать книгу The American Commonwealth - Viscount James Bryce - Страница 53
ОглавлениеDirect Legislation by the People
The difficulties and defects inherent in the method of legislating by a constitution are obvious enough. Inasmuch as the people cannot be expected to distinguish carefully between what is and what is not proper for a fundamental instrument, there arises an inconvenient as well as unscientific mixture and confusion of private law and administrative regulation with the frame of government and the general doctrines of public law. This mixture, and the practice of placing in the constitution directions to the legislature to legislate in a certain sense, or for certain purposes, embarrass a legislature in its working by raising at every turn questions of its competence to legislate, and of the agreement between its acts and the directions contained in the constitution. And as the legislature is seldom either careful or well-advised, there follows in due course an abundant crop of questions as to the constitutionality of statutes, alleged by those whom they affect prejudicially in any particular instance to be either in substance inconsistent with the constitution, or such as the legislature was expressly forbidden by it to pass. These inconveniences are no doubt slighter in America than they would be in Europe, because the lawyers and the judges have had so much experience in dealing with questions of constitutional conflict and ultra vires legislation that they now handle them with amazing dexterity. Still, they are serious, and such as a well-ordered government ought to avoid. The habit of putting into the constitution matters proper for an ordinary statute has the further disadvantage that it heightens the difficulty of correcting a mistake or supplying an omission. The process of amending a constitution even in one specific point is a slow one, to which neither the legislature, as the proposing authority, nor the people, as the sanctioning authority, willingly resort. Hence blemishes remain and are tolerated, which a country possessing, like England, a sovereign legislature would correct in the next session of Parlament without trouble or delay.
It is sometimes difficult to induce the people to take a proper interest in the amendment of the constitution. In those states where a majority of all the qualified voters, and not merely of those voting, is required to affirm an amendment, it often happens that the requisite majority cannot be obtained owing to the small number who vote.1 This has its good side, for it is a check on hasty or frequent change. But it adds greatly to the difficulty of working a rigid or supreme constitution, that you may find an admitted, even if not very grave evil, to be practically irremovable, because the mass of the people cannot be induced to care enough about the matter to come to the polls, and there deliver their judgment upon it.
These defects are so obvious that we are entitled to expect to find correspondingly strong grounds for the maintenance, and indeed the steady extension of the plan of legislating by and through a constitution. What are these grounds? Why does American practice tend more and more to remove legislation from the legislature and entrust it to the people?
One could quite well imagine the several state governments working without fundamental instruments to control them. In a federal government which rests on, or at least which began from, a compact between a number of originally separate communities, the advantages of having the relations of these communities to one another and to the central authority defined by an instrument placed beyond the reach of the ordinary legislature, and not susceptible of easy change, are clear and strong. Such an instrument is the guarantee for the rights of each member placed above the impulses of a chance majority. The case is quite different when we come to a single homogeneous community. Each American state might now, if it so pleased, conduct its own business, and govern its citizens as a commonwealth “at common law,” with a sovereign legislature, whose statutes formed the highest expression of popular will. Nor need it do so upon the cabinet system of the British colonies. It might retain the separation from the legislature of the executive governor, elected by the people, and exercising his veto on their behalf, and yet dispense altogether with a rigid fundamental constitution, being content to vest in its representatives and governor the plenitude of its own powers. This, however, no American state does, or has ever done, or is likely to do. And the question why it does not suggests a point of interest for Europeans as well as for Americans.
In the republics of the ancient world, where representative assemblies were unknown, legislative power rested with the citizens meeting in what we should now call primary assemblies, such as the Ecclesia of Syracuse or the Comitia of Rome. The same plan prevailed in the early Teutonic tribes, where the assembly of the freemen exercised all such powers as did not belong to the king. The laws of the kings of the Angles and Saxons, the capitularies of Charlemagne, were promulgated in assemblies of the nation, and may be said, though emanating from the prince, to have been enacted by the people. During the Middle Ages, these ancient assemblies died out, and the right of making laws passed either to the sovereign or to a representative assembly surrounding the sovereign, such as the English Parliament, the older scheme surviving only in such primitive communities as some of the Swiss cantons. The first reappearance in modern Europe of the scheme of direct legislation by the people is, so far as I know, the provision of the French Constitution framed by the National Convention in 1793, which directs that any law proposed by the legislative body shall be published 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 constitution, this is not strictly a referendum, but a case of legislation by the people alone, as if the voters of the state were all gathered in one assembly. Examples of this method, in both its forms, abound in the more recent constitutions. So far back as 1848 we find Wisconsin referring it to the voters to decide whether or no banks shall be chartered.7 Minnesota declares that a certain class of railway laws shall not take effect unless submitted to and ratified by a majority of the electors. And she provides, by a later amendment to her constitution, that “the moneys belonging to the internal improvement land fund shall never be appropriated for any purpose till the enactment for that purpose shall have been approved by a majority of the electors of the State, voting at the annual general election following the passage of the Act.” 8 In this last instance the referendum goes the length of constituting the voters the ultimate financial authority for the state, withdrawing from the legislature what might seem the oldest and most essential of its functions. So in not a few states no debts beyond a certain specified amount may be contracted except in pursuance of a vote of the people, and in others the rate of taxation is limited by fixing it at a certain ratio to the total valuation of the state, subject to a power to increase the same by popular vote. And in California no law changing the seat of the state government is valid unless approved by the people.
The third and fourth methods are more recent than either of the preceding and mark a further long step in the extension of direct popular action. One is the true Swiss referendum, i.e., the submission to the people for their approval or rejection of ordinary laws passed by the state legislature; the other the Swiss initiative, i.e., a power for a certain proportion of voters to propose either ordinary laws or amendments to the state constitution. The state which has gone farthest in this path is Oklahoma, admitted to the Union in 1907. In her constitution (§ 52), “the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the legislature (§ 53). The first power reserved by the people is the Initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure and fifteen per centum of the legal voters shall have the right to propose amendments to the Constitution by petition. . . . The second power is the Referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety) either by petitions signed by five per centum of the legal voters or by the Legislature as other bills are enacted.” The veto power of the governor is not to extend to measures voted on by the people. The referendum may be demanded against items or parts of a bill. Montana, Oregon, Nevada, South Dakota, and Utah have also referendum provisions generally similar.
In Oregon, the state which has made most use of these new methods, since the initiative and referendum were introduced in 1904, the people had down to the end of 1912 voted upon 76 initiative proposals, of which 33 were carried and 43 rejected; also upon 11 referendum proposals submitted either on demand of 5 per cent of the voters or referred to the voters by the legislature. Of these, 5 were carried and 6 rejected.9 In Oregon the governor has no veto on popular votes. Arguments prepared for and against proposals so submitted may be prepared and printed by the proposers and opponents, the cost of posting a copy to every voter being paid by the state.
The same principle of popular vote has been widely applied to local as well as to state government. Oklahoma applies it to every county and district, and to every municipality. Many recent constitutions provide that the approval of the people at the polls shall be needed in order to validate a decision of the city, or county, or school district, or township authority regarding borrowing, or taxing, or lending public funds to some enterprise it may be desired to assist. Licensing questions are usually left to popular determination alone, with no interference by the local representative authority: while as respects municipal government, California took the novel course of allowing cities of more than ten thousand inhabitants to make their own charters, by a drafting board of fifteen freeholders and a ratifying vote of the people, the state legislature having only a veto on the charter en bloc.10 Other states have followed.
The application of the same principle to smaller areas has the advantage of defeating many jobs which local councils might desire to put through, but may impose on the average voter a heavier burden than his knowledge and capacity fit him to bear. For instance at a municipal election in the city of Portland, Oregon, in June 1909, the elector had to decide not only between twenty-five candidates for six offices, but also to vote on thirty-five distinct and separate legislative propositions, some of them relating to matters of small administrative detail.11
Thus the ancient scheme of vesting ordinary legislative power, as well as constitution-making power, in the whole body of citizens has been now (1913) adopted by seventeen states and seems likely to in other states also, for it finds favour as a legitimate development of the principle of popular sovereignty. It is advocated with special zeal by many of the leaders of the Labour party or those who promote such legislation as that party desires.
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 to either the Senate or the House of a state. Its proceedings are followed with closer attention; and it is exempt from the temptations with which the power of disposing of public funds or public utilities bestrews the path of ordinary legislators; its debates are more instructive; its conclusions are more carefully weighed, because they cannot be readily reversed.15 Or if the work of altering the constitution is carried out by a series of amendments, these are likely to be more fully considered by the legislature than ordinary statutes would be, and to be framed with more regard to clearness and precision.
In the interval between the settlement by the convention of its draft constitution, or by the legislature of its draft amendments, and the putting of the matter to the vote of the people, there is copious discussion in the press and at public meetings, so that the citizens often go well prepared to the polls. An all-pervading press does the work which speeches did in the ancient republics, and the fact that constitutions and amendments so submitted are frequently rejected, shows that the people, whether they act wisely or not, do not at any rate surrender themselves blindly to the judgment of a convention, or obediently adopt the proposals of a legislature.
These merits are indeed not always claimable for conventions, or, in particular, for the more recent constitutions they have framed, much less for individual amendments. The Constitution of California of 1879 (whereof more in a later chapter) is an instance to the contrary; nor have the subsequent conventions even of such old states as Louisiana and Kentucky shown all the judgment that the problems before them required. But a general survey of this branch of our inquiry leads to the conclusion that the peoples of the several states, in the exercise of this their highest function, have not, on the whole, shown much of that haste, that recklessness, that love of change for the sake of change, with which European theorists, both ancient and modern, have been wont to credit democracy; and that the method of direct legislation by the citizens, liable as it doubtless is to abuse, causes, in the present condition of the states, fewer evils than it prevents.
It would doubtless be better, if good legislatures were attainable, to leave the enactment of what are really mere statutes to the legislature, instead of putting them in a constitution; and the initiative is a supersession of the legislature which tends even more to reduce its authority. But if good legislatures are unattainable, if it is impossible to raise the Senate and the House of each state above that low level at which (as we shall presently see) they now stand, then the system of direct popular action may be justified at least in some communities as a salutary effort of the forces which make for good government, opening for themselves a new channel.
In making the referendum and initiative parts of the regular machinery of government instead of applying the popular vote only to the amendment of constitutions, Oregon, Oklahoma, and the other Western states above referred to, have taken what may prove to be a momentous new departure, for the will of the sovereign people can through these methods express itself far more promptly and easily than heretofore. Some American publicists argue that to empower the people of a state to set aside their legislature when they are so disposed is virtually to abandon that “republican form of government” which was in 1787 supposed to be identical with a representative form. This contention ceases to be plausible when it is remembered that the oldest republics in the world, and many of the most famous, were ruled by primary, not by representative, assemblies. A more serious question has been raised by those who doubt the wisdom of arrangements that leave so much to the vote of a multitude which may act hastily, excited by the prospect of some benefit to be obtained, some grievance to be removed, through a sweeping and perhaps insufficiently debated change in the law.
The risk of careless and even reckless measures is undeniable. But they may, in some states, be just as likely to proceed from a legislature as from the people voting at the polls, for the average of knowledge and judgment is not substantially lower among the voters than among those who compose the legislatures; and the safeguards provided by the rules restraining legislative action cannot always be relied upon.
We must wait and watch for some time before venturing to pronounce a judgment upon the working of these new expedients; nor does the experience of Switzerland furnish much guidance, so dissimilar are the social conditions and the political habits of the two nations.16
