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The Commoner.
MOTBMBSR M , If 11
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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
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