REASONS WHY STATE CONSTITUTIONAL AMENDMENT #22 SHOULD NOT BE ADOPTED.
The proposed initiative and referendum amendment is, perhaps, the most important one submitted to the vote of the people by the last legislature. I should have the most earnest consideration of every voter, for it is so radical as to be almost revolutionary in its character. Its tendency is to change the republican form of our government and head it towards democracy, and history teaches that democracies have universally ended in turbulence and disaster.
The question for the voter to determine is whether legislation should be accomplished by means of representatives chosen by the people or by the people themselves.
As our commercial and economic relations grow more complex, beneficial legislation becomes a more difficult problem. It may be easy to determine what the effect of a given law will be upon a certain trade or particular community, but its ramifications often extend beyond the vision of the wisest. Well meaning laws not infrequently bring about results not contemplated. Thus, section 4 of article XIII of the state constitution of 1879 provided for the assessment of mortgages, trust deed, etc.. The avowed purpose was to make the lender pay the mortgage tax.
Section 5 of the same article of the constitution made every contract by which a debtor was obliged to pay the tax null and void. The practical working of these provisions is known to every borrower. Whatever the prevailing rate to interest the lender invariably demanded an addition three or four percent to cover the tax. For years it was realized that this constitutional provision was working a hardship upon the borrowing public. Several attempts were made by the legislature to submit an amendment repealing this provision of the constitution. In 1907, the repeal of this amendment was submitted and carried in the November election of 1910. It was only after years of agitation, however, that this constitutional blunder was wiped out.
California has the referendum on all constitutional amendments. A study of the vote on constitutional amendments which have been submitted to the people is not reassuring to advocates of the initiative and referendum. At the last general election 12 amendments were submitted to the voters of this state, and while 385,613 votes were cast for governor at that election, the average vote for constitutional amendments was about 189,000.
In round numbers, 200,000 voters in this state expressed a choice for governor, but did not have sufficient conviction on the merits of the constitutional amendments to warrant them in voting for against these proposed organic laws. More that one half of the qualified voters in the state refrained from voting upon these constitutional amendments, and they were adopted or rejected by less than 50 per cent of the electors qualified to vote. It is conservative to say that ninety-five percent of those who voted on the proposed amendments made no original research on the questions involved. In cities and towns it was the general rule for the voter to ask some one whom he supposed to be better informed that himself to mark a sample ballot on the amendments submitted.
The writer knows one lawyer who marked as many as fifty sample ballots, and, in this instance, one person practically voted fifty times on each constitutional amendment. The initiative and referendum, therefore, does not express the conviction and judgement of a majority of the voters.
I suggest to each voter the serious consideration as to the merits or demerits of the initiative and referendum amendment:
(a) The right of our courts to pass upon the constitutionality of all statutes is firmly established by necessary inference from language employed in the federal constitution., and by the decisions of Chief Justice Marshall. Section 2 of article I of the state constitution provides that all political power is inherent in the people. If, in the exercise of their power, they reserve to themselves the right to pass laws the statutes so passed will possess the same force and have the same dignity as the constitution itself. The right to determine the constitutionality of a legislative act or statute is vested in the courts, and is one of the safeguards enjoined by the minority against the tyranny of the majority. It is doubtful if a statute enacted by the people in whom all political power is vested could be declared null and void as being in conflict with any provision of the state constitution. Thus, the safeguard enjoyed by the minority would, so far as the initiative and referendum statures are concerned, be wiped out.
(b) As our economic and commercial relations grow more complex, beneficial legislation becomes more difficult. This is an era of experts and specialists in almost every avocation of life. The times demand fewer, more thoroughly considered, and more carefully prepared laws. No law should be enacted without a systematic study of its necessity, and the injury it may inflict as well as the evil it is intended to correct. The people at large have not the inclination or time to enter upon and complete such an investigation. Every honest voter must admit this is an uncontrollably fact. Neither the professional man, the merchant, the trader, the artisan, or the laborer has the time to devote to study these questions as is necessary to become thoroughly informed.
(c) Any ill considered law is dangerous to the public good. A vote by an elector who has not made a careful and thorough study of the law upon which he votes is an ignorant vote with as fair a chance of being wrong as right. Making laws in this manner may be fairly likened to requiring a jury to return a verdict without hearing all the evidence, or the court rendering a decree upon a hearsay statement of the law and the facts. No sane man would be willing to submit his personal and property rights of all to so so ill advised a determination.
(d) Would it not be saner and safer to require of the Legislature a more careful consideration of all proposed laws rather than provide a new method or law making which will bring forth a class of statutes largely the product of the public whim. Is it not reasonable to suppose that preconceived notions, demagoguery, and prejudice will largely enter into the making of laws by means of the initiative and referendum system.
(e) The present constitutional amendment provided that a law may be submitted to the people within ninety days of general election. Certainly, the voter will not have the opportunity of research necessary to enable him to form a mature judgement upon statures thus submitted. His opinions must necessarily be formed from hearsay statements, vociferous mouthings of demagogues, colored and selfish interests and the half baked opinions of sensational newspapers.
(f) The cry that those opposed to the initiative and referendum do not trust the people is largely the declaration of demagogues. The judgement of the people is almost invariable right but a hasty conclusion of the people is as often wrong. The elector, before he determines to vote for the initiative and referendum, should glance over his past life and recall how often he has been lead to an erroneous conclusion in public and private matters by the mistaken statements of well-meaning persons. In political matters eternal vigilance is required to avoid being lead into error by designing persons as well as by those who profess to know when they do not.
(g) Every law before being enacted should be submitted to some form in which it is subject to deliberation and amendment. Under the proposed initiative and referendum no amendment is possible, even though a law should be proposed containing a provision which is palpably unjust and viscous.
(h) The voter can much more readily and discriminately select honest representatives to make the laws than he can determine what laws are honest and beneficial to the whole commonwealth.
(i) The initiative and referendum is yet in the experimental stage. It takes many years, and often many decades, to determine whether an organic law is wise or unwise. The constitutionality of the initiative and referendum has not yet been adjudged or its wisdom established.
The supreme court of the United States may yet hold that this amendment is in conflict with that provision of the federal constitution which guarantees each state a republican form of government. California might do well to watch and wait while Oregon, Oklahoma, and other states are experimenting with this radical departure from the government established by our fathers.
(j) The voter should remember that though the initiative and referendum may work satisfactorily in small communities, or in cities where the population is compact, it does not necessarily follow that it will be a success when applied to a commonwealth in which the interests are as varied and the population as large and the needs of the people as multifarious as they are in California.
Finally, inasmuch as the electors within the last few years have experienced a newly awakened interest in selecting their representatives in all matters of public trust, and inasmuch as a direct primary law has brought it within their power to absolutely select officers of their own choosing, is it is not wiser to leave further experimentation alone until the results in those states which have adopted the initiative and referendum can be carefully studied?
Senator, 40th District.
This document was submitted to Secretary of State Frank Jordan in 1911 for inclusion in a voters' information manual. It is currently filed in the California State Archives under: Secretary of State Election Papers, 1911 Special Election.