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Direct Legislation in Arkansas
A great campaign for the Initiative and refer
endum is on in Arkansas Mr. Bryan' has ac
cepted an Invitation to take part in pie con
test. Beginning September 7 he will spend
four days in that state. Referring to Mr.
Bryan's visit the Arkansas Gazette says:
"A special train may carry William J. Bryan
over Arkansas when ho makes his tour of the
stato the first part of September in the interest
of amendment No. 10, providing for the initia
tive and referendum, according to Governor
Georgo W. Donaghoy, who is now investigating
tho feasibility of securing tho train.
" 'I am thinking very seriously of securing
a special train to tako Mr. Bryan over the
state stated Governor Donaghey yesterday. 'I
havo not fully made up my mind on tho matter,
but tho indications are that such a step may
bo taken. I intend to accompany Mr. Bryan
on his trip over the state. 1 have already made
speaking engagements for a part of the time
while Mr. Bryan is in the state, but I will secure
someone else to take my place on these engage
ments and go with Mr. Bryan. If tho special
train is secured I will invito Ave or six repre
sotnatives of the Arkansas press to accompany
us, and also several others.'
"Govornor Donaghey's attention was called
to tho fact that Mr. Bryan had wired that he
would deliver eight speeches in the state, two a
day. Tho governor stated, however, that he be
lieved Mr. Bryan would consent to deliver a
number of five minute speeches at small towns
en route on tho swing around the state. These
would probably bo made in addition to probably
an hour's speech at some important point in the
afternoon and possibly an hour and a half speech
at somo other important point each night.
"If tho special train is secured the trip will
probably prove to be one of the most striking
events in Arkansas political history. Governor
Donaghey is leading the fight for the adoption
of amendment No. 10, providing for the initia
tive and referendum, and the indications are
that he intendB to put forth every possible effort
to that end. Tho announcement that ho may
secure a special train for Bryan is an indication
of the extent of the fight he intends to make on
the issue, and if the train is secured it is con
sidered certain that he will attempt to reach
as many parts of tho stato as possible.
"It is expected that Georgo A. Lolo of Fayette
ville, president of the Arkansas Farmers' Union,
and B. W. Hogan of Franklin county, president
of tho State Federation of Labor, will be in
vited to join tho Bryan party. Both organiza
tions havo heartily endorsed the cause of
amendment No. 10.
"Governor Donaghoy stated yesterday that ho
had not yet decided on tho points whore Mr.
Bryan will be scheduled to speak. It is believed
that thiB announcement will be held until it
is definitely determined whether the special
train will bo secured."
Rev. A. C. Miller, a well known Arkansas
educator, has written a' review of the opinion
given by a number of lawyers as to the legal
effect of the proposed reform which in Arkansas
is known as "amendment No. 10." Mr. Miller's
article follows:
Proposed amendment No. 10 is already bear
ing fruit.. The principle is intended to provoke
discussion so that the people may know the
meaning of proposed laws and Intelligently
adopt or reject. In the Gazette of August 14
a group of able and conscientious lawyers exer
cised their right and gave us their opinion.
I thank them for publishing their difficulties,
because they declare themselves friends of the
principle, and are opposed only to tho form of
tho amendment. As friends of the principle
they will welcome its elucidation.
As lawyers accustomed to deal with statutes
in relation to tho constitution as it is rather
than as it ought to be, they have a predilection
for tho actual rather than the ideal, and find
it difllcult to adapt their mental processes to
tho new idea sought to be incorporated into
the constitution. They are democrats, but
their notion of democracy is simply that the
people may elect men, not that the people have
a' right to pass directly upon measures. To tho
legal mind this is anarchy. Theoretically these
lawyers admit the principle of the Declaration
of Independence, written by Tefferson, tho father
of American democracy: "That to secure these
rights (life, liberty, and the pursuit of happi
ness) governments are instituted among men,
deriving their just powers from the consent
.of tho governed." "That whenever any form
of government becomes destructive of these
ends, It Is tho right of the people to alter or to
abolish it, and to institute new government,
laying Its foundation on such principles and
organizing its power in such form, as to them
shall seem most likely to effect their safety and
happiness." Moved by this faith our fathers
threw off the British yoke, and organized a'
government based on a written agreement. This
agreement in the. federal constitution and tho
agreements in the several state constitutions
contain provisions for peaceful revolution by
amendment. The people, the ultimate source of
authority in our form of government, made or
ganic law and they are competent to change it.
This our lawyer friends theoretically admit, but
practically deny.
As the vast areas through which our fore
fathers wero scattered made direct legislation
impossible, they, with their Anglo-Saxon genius
for government, used the expedient of legisla
tion through olected representatives. As im
proved means of transportation and communica
tion havo made direct legislation possible and
practicable for a whole state, and as the frequent
misrepresentation of the people in so-called rep
resentative bodies has called for reforms, the
people are seeking through proper constitu
tional amendments to assume and resume the
power which they had delegated to the legisla
tures. That there are dangers may be admitted,
but God took the responsibility for evil by mak
ing human beings capable of choosing between
good and evil, and man can not do what God
did not do, make a form of government that
can not be abused.
Tf these lawyers objected only to the clause,
"each municipality, each county," their argu
ment might have much weight, but they con
demn it even without the so-called "joker."
clause; consequently they oither do not under
stand or do not approve the principle of direct
legislation. As they profess to approve, let us
see whether they can understand.
1. They object to amendment No. 10 because
it will become an elemental part of our organic
law... It would utterly fail of the purpose if it
did not become a constituent part of the or
ganic law. Wo 'expect it to become a part of
the constitution.
2. They object, because they think that "con
stitutional limitations fixed to protect the weak
against the strong, minorities against aggres
sive majorities" will bo gone. Their sympathy
with the weak and minorities is admirable, but
they become exercised lest the weak and the
minorities might issue bonds and change county
seats and county lines. There is no ground for
their sympathy, because under our present con
stitution the weak an.d minorities have abso
lutely no way to raise a public question except
to grow strong and become the majority. A
legislature composed of the representatives of
tho majority refuses to submit constitutional
amendments unless convinced that the majori
ty want it. There is no legal method by which
the weak can make themselves effectively heard
or felt. There is no ground on the other hand
for the fear that minorities would control in set
tling questions of bonds and county lines and
seats. The initiativo makes it possible for a
respectable minority to raise a question, to get
it logically before the voters, and the referendum
make it impossible for the measure to become a
law until approved by a majority of all who
vote on it. Our lawyer friends should favor
the amendment because it gives the weak a
power that they now do not possess, and pre
vents a' few (sixty or seventy members of tho
legislature, no wiser than the average citizen)
from overriding the will of all the people, as
they have occasionally done.
3. Our lawyer friends criticise the amend
ment, because it permits the amendment of
the constitution in the same manner as it pro
vides for action upon statutes. If there w'ere
any clear and persistent distinction between
organic and statute laws this argument might
havo weight, but our lawyers recognize com
mon law (unwritten) as prior to either and
above either unless formally abrogated; and
James Bryce In tho American Commonweal th,
recognized as the finest exposition of our insti
tutions says, after giving numerous illustra
tions: "The framers of these more recent con
stitutions have in fact neither wished nor cared
to draw the line of distinction between what is
proper for a' constitution and what ought to be
left to be dealt with by the state legislature.
And, in the case of three-fourths of the states,
no such distinction now, in fact, exists."
Woodrow Wilson, the greatest American stu-
VOLUME 10. NUMBER 34
dent of constitutions, says: "Not only do ihn,
constitutions of the states go very much mora
into detail in their prescriptions touching the
organization of the government; they go far
beyond organic provisions and undertake tho
ordinary, but very different, work of legislativo
enactment." "The motive, of course, is dis
satisfaction witb legislation; distrust of leete
latures." b '
4. If it is argued that only a majority of the
votes cast on an amendment is necessary if
No. 10 carried, tho answer is that in thirty-two
states amendments are adopted by a "majority
of the votes cast tbereon." Moreover, to re
quire a majority of all votes cast without re
gard to the number cast oh the question gives
the advantage to the indifferent and unintelli
gent and tho stay-at-homo vote. The people
who are interested ought to settle tho question.
In the two famous slum precincts of Cincinnati
the results are distinctly good. In the Sixth
ward 308 votes were cast "for president, but
only one vote on tho taxation amendment. In
the Eighth ward 496 votes were cast for presi
dent -and only nineteen for the amendment
Thus tho "slum'' vote eliminated itself.
5. Our legal friends are alarmed, because if
No. 10 is adopted, five per cent of the voters
may suspend the action of any and all bills
till the next regular election. Certainly. They
argue that almost every law might be thus
suspended. Yes. Every man has the power
to kill himself. How many men do it? It is
necessary that tho referendum power be general
except as to laws necessary for the preservation
of the public peace, health and safety, because
no man can foresee to which law the referen
dum should be applied. - Appropriation bills,
apparently innocent and neoessaTy, may involve
the foulest grafts These good -lawyers fear the
suspension of laws for two years, the effect of
which should terminate in that period. Cer
tainly such a thing might occur, but now twenty
six members of the house and ten senators (be
ing majorities of a quorum) may enact laws on
subjects not even mentioned in the campaign
laws demanded only by corporate interests, pds
sibly by the use of graft, all of tho Iqgislators
being later convicted of- bribery, but the law,
if not set aside by the courts as unconstitutional,
goes into effect and can not be touched for two
years. Which is more terrible, to take the
chance of a law being suspended for two years
by a part of the people themselves, or to allow
a law, passed corruptly, disapproved by all the
people to exhaust itself before the people can
legally prevent it?
6. These lawyers show not only lack of ap
preciation of the real nature and spirit of the
amendment, but even of its very letter; when
they say: "As all acts of the legislature will be
hung up until after the time tho governor has
to act, it would seem to follow that the veto
power of the governor will disappear from the
constitution." All acts are not hung up until
after the time the governor has to act. He has
the same veto power he has ever had except
when the legislature itself refers a law to the
people. It is because No. 10 gives the legisla
ture itself the power to reverse a law; that it
withholds the governor's power to veto; and
thus prevents a corrupt or arbitrary governor
from thwarting the will of the legislature in
submitting a law to the people. To illustrate:
If a prohibition legislature passes a prohibition
law and decides to submit it, a whisky governor
can not stop it. If a whisky legislature passed
a whisky law and did not submit it, the gov
ernor could veto it. If he did not, the people
could hold it up for a referendum vote.
7. Our legal friends, after closely missing the
foregoing important principle proceed gravely
to assure us that our own supreme court and
the United States supreme court would declare
amendment No. 10 (even without the "joker")
void, as contrary to the guarantee of the con
stitution to the people of each state -of a re
publican form of government. If constitutions
are made by the people and the people formally
and by constitutional process decide to resume
some of the delegated powers the courts will
hardly deny them the right. Indeed, in Oregon
where the provision Is the Bame as in amend
ment No. 10 (without tho so-called "joker")
the court has decided: "The initiative and
referendum amendment does not abolish or de
stroy the republican form of government or
substitute another in its place. Laws proposed
and enacted by the people under the Initiative
laws of the amendment' are subject to the same
constitutional limitations as other statutes and
may bo amended or repealed by the legislature
at will." The judges of the Oregon supreme
court havo expressed theitiselyes publicly. Judge
King says: "In my opinion the Initiative and
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