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About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (Nov. 24, 1911)
r-,H " F V ",rf,T ' Vi k The Commoner. MOTBMBSR M , If 11 '" 3flWSWi'! '" 's,i Direct Legislation Before Supreme Court George Fred Williams of Massachusetts has filed an interesting and instructive brief In the direct legislation case now before the United States supreme court. The first installment of this brief was printed la The Commoner of November 10. The third Installment appears In this issue. Other in stallments will follow. The third installment of Mr. Williams' brief follows: HL The Basis of Construction and Interpre tation A. THE GENERAL RULES It is submitted that in construing and In terpreting Art. IV, Sec. 4 there must be a ma terial departure from the rules ordinarily ap plied to the constitution of the United States. National powers were acquired by delegation of sovereignty from the people of the states. When the limits of these powers are in ques tion it is a proper and necessary inquiry what the people of the then existing states intended to delegate to the United States. The national powers can not be extended beyond what were then intended to be conveyed. Hence the minute inquiry into the interpretation then put upon the constitution. It would seem that even in this inquiry the opinions of those who com prised the convention which framed the con stitution, are given too much weight, inasmuch as the meetings were secret and these opinions were not known to the people. The debates be fore the people and in the ratifying conventions would seem to be entitled to greater weight, as they may be taken to have fairly expressed the opinions of the people whose consent gave effect to the instrument. l,A But we deal now with a different case, viz., a provision of guaranty, which is for the benefit of the states and in which the states, not the United States, are the interested parties. The guaranty was not designed to deprive the states of any sovereign powers not expressly delegated in the national constitution, and the X. and XI. amendments emphasized this fact. Hence, not only, as has been heretofore sub mitted, are the states alone entitled to call for the enforcement of the guaranty, but the prevail ing opinions of the states become of dominating importance in determining what is a "republi can form." If the states are content with the present forms of the state governments there can be no call for the guaranty. Hence it Is submitted that present public opinion Is the- foremost test In construing this guaranty. Next in importance seem to be the precedents established by congress, which is invested with power to admit new states, and therefore from time to time establishes the forms, which, like those of the original states, can not be im peached. Any opinions of the courts not in conflict with the above two standards should next, be considered. But there are also, it -Is submitted, certain irrevocable standards of the past, which even present opinion can not exclude. First among these are the forms of free government which were known to the colonists, when they were permitted to exercise sov ereignty. Any free forms practiced by the colonists can not be excluded from the category of "republican forms." The second irrevocable standard must Include any form, which was recognized as republican, when the constitution was framed. So far as there was agreement upon fundamental prin ciples, we must accept any forms which, within the fundamental principles were comprehended in the extremes of opinion of that day. As Hamilton and Jefferson agreed that popular sovereignty must always be maintained, any "form" which was within the purview of the schools they represented must be accepted as "republican." Next in importance would seem to be tne popular judgment in 1887. Finally would come the secret statements in the constitutional convention. These then are the standards of construction, suggested, in the order of relative importance. 1st Present public opinion. 2d Congressional precedents. 3d Opinions of the courts. 4th Historic democratic forms. 6th Extremes in contemporaneous opinion. 6th Public opinion in 1887. 7th Statements in constitutional convention. Henco consideration is asked to B. THE STANDARDS BY WHICH THE GUARANTY IS TO BE CONSTRUED 1. Present Public Opinion The views above expressed as to the primary Importance of present public opinion are the justification for the full statement mado abovo (under I, B and C) of the present status of the Initiative and referendum in tho various states. It may be assumed that "whatever is" Is at loaBt intended to bo republican, as tho standards of liberty have not been lowered In tho last cen tury. This basis of construction is suggested by the expressions of Mr. Justice Holmes in his dissenting opinion in Opinions of the Justices, 1G0 Mass. 587. " in construing tho constitution wo should remember that it Is a frame of government for mtin of opposite opinions and for tho future, and therefore not hastily import Into it our own views or unexpressed limitations derived merely from tho practlco of the past." Thomas Jefferson said of constitutional changes (Works, Vol. VII, p. 14): "Forty years of experience in government Is worth a century of book reading "I know also that laws and Institutions must go hand In hand with tho progress of the human mind. As manners and opinions chango with the change of circumstances, institutions must advance also and keep pace with tho times." The sovereignty of tho people found expres sion In Lincoln's first inaugural addross: "This country with its institutions belongs to tho people who inhabit It." In Martin v. Hunter's Lessee, 1 Wheat. 327, the 'court says: "It could not bo forscon that now changes and modifications of power might bo Indispen sable to effectuate tho general objects of the -charter (U. S. constitution), and restrictions and specifications which at the present, might seem salutary, might in the end, prove the over throw of tho system itself. Henco its powers are expressed in general terms." Of all the terms used in the constitution "re publican form of government" is tho most general. It swept Into meaning and significance all tho free forms of the past, the then existing con ceptions, and the possible developments in free government for generations, perhaps centuries, to come. The term has, and was intended to have, infinite elasticity. James Wilson of Pennsylvania, was tho greatest republican in the constitutional conven tion. As a justice of this court he gave a defini tion of republican government, which was good for that day and will remain good to the end of time: "My short definition of such a government is one constructed on this principle, that the supreme power lies In tho body of the people." Chisholm v. Georgia, 2 Dall. 457. Within this'circle of populaT sovereignty forms may revolve, crosB, intertwine, shift, live and die. It excludes absolutely the Idea that forms are confined to those which existed when tho constitution was framed. Little was then known of popular government save in the memory of early colonial days, In the revolutionary fabrics of the states and tho tottering confederation. The states had just formed their constitu tions, and free governments had not existed in the colonies since the Stuarts had committed them to the control of the privy council near the end of the 17th century. Tho only original conception which the revolution created was that of the sovereignty of the people. The framers of constitutions had fluctuated between royalty and democracy: there were Hamlltons and Jeffer sons. The republic was an experiment; doubts applied to every feature of the new formB. It was the uncertainty of infancy, which only age and experience could abate. To say that these experimenters with newly formed ideas were to determine for all time what constituted a re publican form, would be to bind posterity to the crude notions of republican childhood. When the secret ballot has been discovered as the true record of a nation's will must we be limited in Its use to the notions of our ancestors to whom the ballot was an untried tool? Are the experiences of a simple colonial yeo manry to guage our armament against giant monopolies and legislative corruption? The railroad, telegraph and telephone have multiplied a hundred fold tho possibilities of democratic co-oporatlon. ' " The doily press and multitudinous magazine of today can not tnko tho, same place In our horizon with tho scattered pamphlots of tho revolutionary period. It would bo a block In tho way of human pro gress If this court should plant itnclf upon tho conditions and conceptions of our forefathers In tho constitutional conventions, and uay to each of 40 sovereign states "Thus far ohalt thou go and no farthor." Tho constitution of Oregon embodies tho pro gress and development of our Institutions; It Is tho first working model of an Ideal form In which "tho supreme power lies In tho body of tho people" 2. CongrcNNionul Precedent Should this court undertake to dcclaro invalid tho terms of tho Orogon Inltlatlvo amondrnont, there will be established two different standards of republican government: ono will havo tho sanction of tho congress and president, tho othor of this court. Under Its recognized powor congress has admitted Oklahoma to this union and given its consent to tho admission of Arizona. Those two states havo In their constitutions, almost In tho same words, tho inltlatlvo and referendum forms of Orogon. It Is not a paral lel, It Is an essential Identity. (See ox parto Wagner, 21 Ok. 35.) It is submitted that such action of tho political powor is detorminatlvo of this case. a. ADMISSION OP OKLAHOMA The enabling act of congress for tho admis sion of Oklahoma (U. S. S. at Large, Ch. 3335; Act Juno lGth, 1906). '. . t Sec. 34 Provides for submission of tho con stitution to tho people. "And If tho constitu tion and government of said proposed Btatc are. republican in form &c, it shall bo tho duty of the president of tho United States" to Issuo his proclamation announcing tho result of said election and thereupon tho proposed state of Oklahoma shall bo deemed admitted by con gress Into the union, &c. The Congressional Record teems with attacks and defences of these direct legislation pro visions, and tho decision of congress was mado deliberately in their favor. It Is matter of notoriety that in the year following thero wan much doubt .expressed as to tho acceptance of tho constitution by President Roosovelt. Mr. Taft, then secretary of war, was supposed to have been tho representative of tho president in addressing tho peoplo of Oklahoma and criti cising tho provisions for tho initiative and referendum. That tho people of Oklahoma had strong reasons to boliove that their constitu tional provisions would meet with executive opposition, appears In the opinion of C. J. Wil liams in ex parte Wagner, 21 Ok. 35. The court thus explains tho history of the omission of the self-executing clauso of the direct-legislation provisions In tho Oregon con stitution. "Such self-executing provisions were In the original form which was provided to bo sub mitted to tho peoplo; but the convention re assembled "in order to obviate any possible ob jection that might be mado by the president of the United States to the same, wherein It was required by Sec. 4, Art. IV, Constitution of tho United States and tho terms of tho onabllng act to be republican In form, and not in conflict with tho provisions of said act, that part was eliminated, leaving It to tho legislature to carry same into effect. Until the legislature created measures carrying It Into effect, the federal government had less right or reason to com plain." The decision was deliberately and finally made as follows: By proclamation (U. S. St. at Large, Vol. 35, pt. 2, p. 2160), Nov. 16, 1907, President T. Roosevelt declared that the constitution adopted by the peoplo had been certified to him "And whereas It appears that the said constitution and government of the proposed state of Okla homa are republican in form, &c and said con stitution" is not repugnant to tho constitution of the United States or to the principles of tho Declaration of Independence, &c. "the state of Oklahoma is to be deemed admitted by con gress Into the union under and by virtue of the said act (June 16th, 1906) on an equal footing with the original states." Signed "By the President, Elihu Root, Secretary of State." b. ADMISSION OF ARIZONA The enabling act for the admission of Arizon i i A 4 'i f-'V ?.--f?J UMiti&i$-ifa'tiii'tli U" l irju