The opening words of the Declaration of Independence announce the "self- evident" truths "that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Declaration lists further truths:
That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
These ideas were not new in 1776. The great English philosopher John Locke had made similar claims almost a century before. What was unique about the American situation at the time of the Revolution was the readiness and ability of Americans to translate these philosophical truths into practical action. The history of Massachusetts provides a good example of how seriously Americans took the claim that governments were their creations, and that the authority of such governments was derived from the consent of the governed. After the declaration of Independence was signed, the Massachusetts House of Representatives adopted a resolution announcing its interest in drafting a new state constitution to replace the colonial frame of government, and asked that town meetings be called so that citizens could consider whether such a course of action would be acceptable.
Concord's meeting resolved that a sitting legislature was "by no means a Body proper to form & Establish a Constitution." Governments were not to be created by governments, but by the people. Concord resolved that "it appears to this Town highly necessary & Expedient that a Convention, or Congress be immediately Chosen, to form & establish a Constitution, by the Inhabitants of the Respective Towns in this State,..." The town meeting of Boston asserted that in making such an important public decision pains must be taken to consult not only the legislature of Massachusetts but all the people in order to "collect the wisest Sentiments" on the subject of a new constitution. Attleborough's town meeting objected to granting the government the right to draft a new form of government because "the right of the Inhabitants of the Said State to negative the Said form, or any Article in it when drawn is expressly acknowledged...."
Undeterred, the state government of Massachusetts drafted the Constitution of 1778. The proposed frame of government was sent to town meetings where approval by two-thirds of votes cast was necessary for adoption. A gathering of citizens in Essex County found much in the proposed constitution that was objectionable. In particular, the assembled citizens asserted [t]hat a bill of rights, clearly ascertai ning and defining the rights of conscience, and that security of person and property, which every member of the State hath a right to expect from the supreme power hereof, ought to be settled and established, previous to any ratification of any constituti on for the state. (Pole 1970, 446)
Other meetings found other aspects of the proposed constitution that were worrisome or objectionable, and it failed to gain the necessary votes for adoption.
In June of 1779 the state government of Massachusetts responded to this defeat by calling for a constitutional convention. This convention, whose delegates were chosen specifically for the task of framing a new state government, drafted a new constitution, the first part of which was a declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts. Once again, the town meetings debated, voted, and eventually approved the new constitution. The voters of Massachusetts, acting twice through a popular vote on a proposed course of public action, had exercised their fundamental right to create a government that satisfied them.
The initiative allows popular initiation of constitutional amendments and laws; a referendum gives voters an opportunity to express their approval or disapproval of acts taken by their governments. In essence, a referendum allows citizens to approve or repeal an adopted state statute (statutory referendum) or approve or reject a legislatively approved change in their state's constitution (constitutional referendum). Referenda in various states may be called by the state legislature or by popular petition, or may simply be required before undertaking certain measures.
In every state except Delaware proposed amendments to state constitutions that have been approved by the state legislature must be submitted to a constitutional referendum of the people. In sixteen states citizens may use the constitutional initiative process to propose and adopt amendments to their state constitutions. In over twenty states citizens may use the statutory initiative to bring proposed statutes to popular vote. Some states require statutory referenda in certain cases and allow the state legislature to call for a referendum on legislation it has approved. In addition, thousands of local referenda re held each year.
Given the role that initiatives and referenda have played in state and local governance, it is remarkable that there has never been a national initiative or referendum. The reason for this is simple: the Constitution of the United States does not provide for direct citizen initiation of, or direct popular vote on, either statutes or constitutional amendments. Americans do not make national law directly through their votes. Instead they choose representatives who determine national policy.
A discussion of why there is no provision in the Constitution for national processes of initiative and referendum and whether there should be such a provision leads inevitably to a discussion of democracy and representation. Does the United States have a representative system of government only because it is impossible for the people to gather to conduct public business (an obstacle that initiatives and referenda seek to eliminate)? Or do we expect that our representatives and our representative form of government will produce better and wiser policies than the people themselves could produce? Are the people of the United States sufficiently well-informed to make wise decisions about public policy issues? Do they have enough regard for the rights and interests of those with minority points of view to avoid damaging those rights and interests? Should th e people have the power, ultimately, to make policy directly when they are dissatisfied with the actions, or inaction, of their elected officials?
That men were capable of invading the rights of their fellow citizens was an axiom of Anglo-American political thought in the eighteenth century. It was widely assumed that the human appetite for power threatened all political systems, however noble their origins and intentions, with degeneration into tyranny. The men who gathered in Philadelphia were history-minded, and their study of ancient governments and of contemporary European systems taught them that monarchies tended to degenerate into tyrannies of one over all others, that aristocracies degenerated into oligarchies in which a few oppressed the many, and that democracies degenerated in to mob rule and anarchy.
Most Americans had no intention of fastening a monarchy on themselves after struggling so hard to cast one off. There existed no formal aristocracy in the United States and Americans were not interested in seeing one created. But the only remaining alternative--a strongly democratic government--was not one that the framers of the Constitution were anxious to establish. Between 1776 and 1787, a number of states had experimented with systems of government in which popularly elected legi slatures had dominated weak state executives and judiciaries. The results were alarming to many of the framers.
The democratic nature of various new state constitutions had brought a new kind of man--often a small farmer or person of modest economic background--into government. Many of these men found themselves crushed by debt and taxes in the years following the American War of Independence. To counter this burden, many states issued paper money. In Rhode Island this was accomplished by the adoption of a state law giving landowners loans of new paper money, with their land as security. When this paper money was made legal tender for payment of debts the usual relationship between creditors and debtors was reversed: debtors pursued creditors who wished to void being paid with what they regarded as worthless money. In response to this evasion the legislature of Rhode Island made it an offense to refuse paper money and allowed debtors to come to court, declare their debts, and pay them with paper money. Creditors were then informed that the debt had been discharged. Andrew McLaughlin wryly notes that "... seven states entered on the difficult task of legislating their people into financial blessedness by the simple means of making money..." (McLaughlin 1962, 106-107).
Paper money as issued in Massachusetts as well, but continuing economic distress led to calls for yet more relief. When none was forthcoming, a group of armed men attempted to close the courts and disrupt the processes by which mortgage foreclosures and debt collections were carried out. A ragtag army of these hard-pressed and angry men gathered in Worcester, Massachusetts, in 1786, hoping to generate enough pressure on public authorities to receive some relief. Under the "command" of Daniel Shays, they moved against the federal arsenal in Springfield. Ho wever, they were met by a force of 4,400 men gathered under the authority of the state of Massachusetts. These troops scattered Shays' men and ended what is now known as Shays' rebellion.
The framers of the Constitution shared this commitment to government by representation, but disagreed on how representatives were to be chosen and to whom they should be accountable. Should a theory of actual representation be translated into a system in which representatives were popularly elected and charged with the task of pursuing the interests of their constituents? Or should a theory of virtual representation be translated into a system in which representatives, insulated from public opinion and popular pressure, would seek to identify and pursue broader "public good"?
Madison's Notes record the belief of Roger Sherman that "the people... immediately should have as little to do as may be about the Government. They [lack] information and are constantly liable to be misled." Elbridge Gerry of Massachusetts, no doubt with the memory of Shay's Rebellion still fresh in his mind, joined Sherman by stating that the evils we experience flow from an excess of democracy. The people do not [lack] virtue, but are the dupes of pretended patriots."
To these doubts about the character and capability of the people were added the concerns of those, like Charles Pinckney of South Carolina, who wished to maximize the influence of state governments in the work of the national government. Pinckney proposed that each state's legislature choose its representatives to the House of Representatives. Otherwise, Pinckney worried, the state governments will "lose their agency" and "S. Carolina & other States would have but a small share of the benefits of Govt." John Dickinson of Delaware shared these concerns, comparing "the proposed National System to the Solar system, in which the States were the planets, and ought to left to move freely in their proper orbits." James Wilson replied that while he was not in favor of extinguishing these planets, "neither did he on the other hand, believe that they would warm or enlighten the Sun." Wilson added that selection of members of the house of representatives by state legislatures was undesirable because state legislatures have "an official sentiment" opposed to the aims and sentiments of a national government "and perhaps to that of people themselves." Wilson was joined in this view by Alexander Hamilton and other nationalists.
But unlike Hamilton, Wilson opposed state legislative selection of representatives not only because he wanted to avoid undue state influence in the national government but also because he wanted to maximize the influence in the Congress of the people. He urged the popular election of members of both the House of Representatives and the Senate. Wilson invoked the theory of actual representation in arguing that "representation is made necessary only because it is impossible for the people to act collectively." If all citizens could not be gathered to make decisions, then a representative government should possess "not only 1st the force, but secondly the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole society."
The Convention eventually settled on a plan to have members of the House popularly elected and members of the Senate chosen by state legislatures. As was so often the case during that summer in Philadelphia, opposing views found a compromise. The national legislature was thus subject to both popular influence (in the House) and state influence (in the Senate). This system of election reflected the belief that the people must have some direct influence on government while still allowing for reservations about the people's ability to properly participate in their own governance. In addition to mixing state and popular influence in the national legislature, the constitution provided for actual representation in the House and virtual representation in the Senate.
But had the Constitution really provided for the actual representation of popular opinion? Was the democratically elected branch of Congress to be easily subject to public opinion?
...governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and over-bearing majority. (Federalist No. 10)
A prime advantage of the proposed constitution's representative form of government, Madison asserted, was that a great number of citizens from a large extent of territory would be brought together in an extended republic. This republic would contain a variety of groups and interests. The principle of majority rule in the legislature, however, would curb the pursuit of narrow interests by minority factions. And the multiplicity and geographic distance of interest groups from one another would discourage the effective operation of a majority faction that might threaten the rights of the numerical minority.
The Constitution's plan for representation had, Madison wrote, an additional advantage: because members of the House of Representatives would be chosen in large districts with large constituencies,
...it will be more difficult for unworthy candidates to practise with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre on men who possess the most attractive merit, and the most diffusive and established characters. (Federalist No. 10)
Madison believed that the popular election of members of the House of representatives would bring to office men of considerable prominence. These men would "refine" the views of the public and pursue policies that showed a proper regard for the public good and a proper disdain for the political projects of special interests.
To all of these checks against "factious" influence in the House, the framers of the constitution added additional checks against the threat of popular actions in the national government. A Senate, not chosen by popular election, had to approve any legislation passed by the House before it could go to the president; the president, also not chosen by popular election, had the power to veto it; and the Supreme Court, chosen by the president with the consent of the Senate, would judge the constitutionality of legislation.
Not surprisingly, some of the most cogent complaints raised against the proposed Constitution focused on the alleged absence of democratic processes and on its overall aristocratic tendency." Melancton Smith of New York, speaking to the New York ratifying convention about the Constitution's system of representation, expressed this view:
The idea that naturally suggests itself to our minds, when we speak of representatives, is, that they resemble those they represent. They should be a true picture of the people, possess a knowledge of their circumstances and their wants, sympathize in all their distresses, and be disposed to seek their true interests. The knowledge necessary for the representative of a free people not only comprehends extensive political and commercial information, such as is acquired by men of refined education, who have leisure to attain to high degrees of improvement, but it should also comprehend that kind of acquaintance with the common concerns and occupations of the people, which men of the middling class of life are, in general, more competent to than those of a superior class. (Kenyon 1966, 382)
Smith wanted representatives to be attentive to the special concerns of their constituents. He also believed that a large number of representatives should be chosen in smaller districts: "...the number of representatives should be so large, as that, while it embraces the men of the first class, it should admit those of the middling class of life."
Many opponents of the Constitution concluded, like Smith, that a small number of representatives serving large constituencies would prevent the common American from being elected to the House of representatives. This would preclude a desirable resemblance between the representative and the represented. The likely effect of this system, said opponents of the Constitution, would be diminished power of the people within the only part of government they directly selected. This "aristocratic" bias in the House was intolerable given what opponents of the Constitution regarded as the flatly undemocratic character of the remainder of the government.
Opponents of the Constitution argued for the establishment of an advisory council to limit the power of the president, shorter terms and/or rotation of office for both senators and the president, a provision allowing states to recall senators, and a bill of rights to safeguard the rights of the individual. The Constitution was eventually ratified as written, though only after its supporters agreed to propose amendments forming a bill of rights once the government was in operation.
As parties became more prominent in nominating residential candidates they transformed the operation of the electoral college. Candidates for selection to the electoral college were frequently pledged to a particular party and its presidential nominee. By 1832 every state but South Carolina had shifted the selection of these electoral college electors from state legislators to voters. The popular election of pledged electors retained the form of the electoral college's mediation between voters and presidential candidates, but the discretion of electors was substantially reduced in favor of greater public influence in the selection of a president.
The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists ...The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind; and the possessors of these, in turn, despise the Republic and endanger liberty. From the same prolific womb of governmental injustice we breed the two great classes--tramps and millionaires. (Levy 1982, 293)
These economic wrongs would not be righted by the Democratic or Republican parties, the Populists argued, because both were servants of business interests:
We have witnessed for more than a quarter of a century the struggles of the two great political parties for power and plunder, while grievous wrongs have been inflicted upon suffering people. We charge that the controlling influences dominating both th ese parties have permitted the existing dreadful conditions to develop without serious effort to prevent or restrain them....They propose to sacrifice our homes, lives, and children on the altar of mammon; to destroy the multitude in order to secure corru ption funds from the millionaires. (Levy 1982, 293)
The Populists claimed that the answer to this political problem was more democracy. They favored the secret ballot, which would shield voters from intimidation; direct popular election of senators; and the use of he initiative and referendum.
While the economic analyses and rhetoric of the Populists received a cold reception from most Americans, their complaints about the domination of political processes by special interests and corrupt parties found a large and responsive audience. The Progressive Movement, which succeeded the Populists, pursued a number of the Populists' reforms. Its greatest achievement at the national level was the adoption of the Seventeenth amendment, which provided for popular election of senators. Progressives successfully pressed for use of secret ballots, regulation of political parties, and use of nonpartisan elections at the local level. They also led the fight for direct democracy in the states, urging state adoption of the initiative and referendum processes.
The Progressive Movement was extremely diverse, claiming both Democratic and Republican adherents. But the Progressive Movement's greatest concern was over the growth of large and powerful organizations--corporations, organized labor, and party political machines--and influence on American society and politics. Progressives feared such organizations undermined the role of the "unorganized individual" in American life and American politics. Against the power of these groups, which wielded money, votes, and patronage to pursue special political aims, the Progressives hoped to muster the power the votes of the average citizen.
Between 1898 and 1914 the push for direct democracy won the amendment of state constitutions following initiatives and referenda in South Dakota, Utah, Oregon, Montana, Oklahoma, Maine, Missouri, Arkansas, Colorado, Arizona, California, Idaho, Nebraska, Nevada, Ohio, Washington. The pioneering spirit of many relatively new states reflected in their early adoption of the initiative and referendum.
Some Americans believe that amending the constitution to allow direct popular votes on statutory and constitutional issues is the logical and desirable next step in the ongoing process by which our national government has been democratized. Others think such amendments would be a fundamental and ill- advised departure from the principle and practice of a democratically elected but nevertheless representative government.
The push for direct democracy moved from the state level to the national level in 1907, when Rep. Elmer Fulton of Oklahoma introduced House Joint Resolution 44. This resolution, which was eventually unsuccessful, would have amended the Constitution to provide for national initiatives on both proposed statutes and constitutional amendments.
In the 1916 presidential campaign the supporters of President Woodrow Wilson advised voters that, while war raged in Europe:
You are working, not fighting!
Alive and happy, not cannon fodder!
Wilson and peace with honor?
or
Hughes with Roosevelt and war.
Many Americans were not convinced that this would long remain the case because of loan arrangements that led to the shipment of U.S. munitions to Britain. Such notable reformers as William Jennings Bryan, Robert LaFollette, and Jane Addams supported a proposal that required a national referendum on any declaration of war. After Wilson's reelection this proposal was the subject of congressional hearings in February, 1917. By March of 1917 American merchant seamen were arming themselves against anticipated attacks by German submarines. On April 6, 1917, German attacks on American shipping prompted a U.S. declaration of war.
Disillusioned by America's involvement in World War I and chagrined by the harsh peace that followed, Americans turned again to the war referendum proposal in the late 1930s as war menaced Europe once more. Rep. Louis Ludlow's "Ludlow Amendment" calling for a war referendum went further in the legislative process than any national referendum proposal before or since. The proposed amendment came to the floor of the House in December, 1937. President Franklin Roosevelt lobbied for the defeat of the proposal. A House vote of 188-209 fell well short of the two-thirds vote needed for further advancement.
The most recent significant proposals for a national initiative were advanced in 1977. These proposals were in response to a perceived loss of effective popular contact with and control over national policymakers. An unpopular war in Vietnam, the resignation of a president in disgrace, and scandals in Congress all contributed to a low level of public confidence in national leadership. In December, 1977, the Subcommittee on the Constitution of the Senate Committee on the Judiciary held hearings on two national initiative proposals.
In introducing Senate Joint Resolution 67, 95th Congress, 1st session, sponsored by Sen. James Abourezk and Sen. Mark Hatfield, Senator Abourezk stated that:
[t]he last few years have seen a growing dissatisfaction, and in many cases a serious distrust, of Government by the very people who are its source of power and who elect its leaders. People stay home on election day not because they are lazy or do not care but because they have decided that meaningful communication with th eir leaders is no longer possible or effective.
Echoing an earlier Progressive theme, Abourezk continued:
...much of the alienation and helplessness that citizens experience can be mitigated if avenues for constructive participation exist. The initiative procedure is one means to provide direct citizen access to our governmental decision-making process through a legal and democratic method. (Hearings on Voter Initiative Constitutional Amendment)
Among the key features of the Abourezk-Hatfield proposal were the following:
Also introduced during the first session of the Ninety-fifth Congress was House Joint Resolution 544, whose prime sponsor was Rep. Guy Vander Jagt. There are two key differences between this proposal and the Abourezk-Hatfield proposal. First, a successful initiative would require not a simple majority of all voters but a majority of votes cast in each of three-fourths (thirty-eight) of the states. Second, a three-fourths vote of both houses of Congress rather than a two-thirds vote would be necessary for Congress to reverse the action of the people. The same majority of votes in three-fourths of the states would be needed for the rep eal of a law or a provision of a law.
The amendments proposed in 1977 did not involve proposals for national constitutional initiative or referendum processes. A constitutional initiative process would allow voters to propose amendments and put them to a national popular vote by gathering a specified number of signatures on a petition. Such a process would supplement, or could conceivably replace, the current amending process, which requires both houses of Congress to pass a proposed amendment by a two-thirds vote before sending the proposal to the states where approval by three-fourths of the states (expressed either by state legislature or special convention) is required for ratification. A constitutional referendum process would require a popu lar vote on constitutional amendments approved by Congress.
Another option not discussed during the 1977 hearings is the statutory referendum, a process that could work in several ways. Congress and the president could be required to submit certain types of legislation to a popular vote before it could become law. Or Congress and the resident may be given the option of referring some legislation to a popular vote. Finally, a process could be established that would employ a popular petition to require that a statute approved by Congress and the president be submitted to a popular vote.
Obviously, some of these alteratives are more sweeping than others and hence would be more controversial. Statutory initiatives and referenda would be subject to repeal by Congress and invalidation by the Supreme Court. Constitutional changes enacted by popular vote would become part of the nation's fundamental charter and could only be changed or removed by subsequent amendment. Debate about all proposals for direct democracy, though, would focus on arguments about the comparative merits of democratic and representative forms of government.
The truth about the likely impact of national initiative and referendum processes is less tidy than one would gather from the claims of their advocates or detractors. It is true, for instance, that the referendum process has been used in ways that damaged the interests of minority groups. But he same results have been produced by representative governments at both the state and national levels. It is true that the initiative/referendum process could heighten citizen awareness of and interest in political questions. It is also true that this heightened awareness could bring increased emotion and acrimony to political life.
Questions about the capabilities of citizen voters do not admit of pat answers. It is undeniable that many citizens lack information about public issues and do not participate widely in the nation's political life. The question is whether widespread citizen apathy and lack of information is a normal state of affairs or whether it is a product of a representative system that leaves us to decide who decides on policy issues instead of deciding for ourselves.
Advocates of the initiative say representative government is "government by elites": the representative and the "interests" who lobby them. But any national initiative would be dominated by an intense, unelected minority using direct mail, television commercials and other techniques of mass persuasion. (George Will, Washington Post, 28 July 1977)
Will believes people should not govern or decide issues, but are supposed "to decide who will decide." he states that public policy "is best given shape by representative institutions, which, unlike 'the people,' are deliberative bodies." Those of us who favor the initiative process believe that an educated and well-informed public, operating in an atmosphere of unrestrained First Amendment rights, is fully capable of acting as a deliberative body.
Contrary to Will's suggestion that it would undermine our representative form of government, the initiative process would provide a much-needed complement to the system. To an electorate frustrated by a Congress unwilling to act, it provides another democratic means to bring about change. To the federal government itself, the initi ative process would provide another check in our system of checks and balances, a dilution of centralized power. (James Abourezk, Washington Post, 10 August 1977)
The education value and politicization potential from a national initiative could be substantial. Thousands of people would be involved in any national initiative campaign on one side or the other. Furthermore, the public's attention would be focused on debate and discussion of the merits or demerits of public policy issues rather than just on style, looks, image, and other similar aspects of many modern campaigns. Furthermore, the debate would be in public and in the open....The initiative process will provide one more way for the vox populi to speak and, more importantly, it will permit them to act rather than simply react to actions taken by others. Larry Berg, Testimony on Voter Initiative Constitutional Amendment, 13 and 14 December 1977)
The political arena which [the initiative process] creates will be preempted by groups that have money, that have organization, that have political skill, and that have power. (Peter Bachrach, Testimony on Voter Initiative Constitutional Amendment, 13 and 14 December 1977)
In the end, in fact, the real issue... is whether or not America believes in democracy, and believes it can afford the risks that go with democratic life. All of the objections to it are so many different ways of saying "the people are not to be trusted"--a skepticism which, it is perfectly true, can be traced back to the "realism" and cynical elitism of a significant group of constitutional fathers....If Americans sometimes seem unfit to legislate, it may be because they hav e for so long been passive observers of government. The remedy is not to continue to exclude them from governing, but to provide practical and active forms of civic education that will make them more fit than they were. Initiative and referendum proces ses are ideal instruments of civic education .... Benjamin Barber, Testimony on Voter Initiative Constitutional amendment, 13 and 14 December 1977)