Perhaps enough has been said to indicate the present position of the courts with reference to state statutory and constitutional enactments. It will now be well to discuss briefly some recent developments with reference to the manner of enacting these two forms of state legislation. The distinction in substance between state constitutions and state statutes has to a large extent disappeared through the practice of embodying detailed legislative enactments in the constitution.228 There is now quite a decided tendency in some states to break down the formal distinction between constitutions and statutes by employing the same methods for the enactment of state laws and the adoption of constitutional amendments.

Since 1818 the really fundamental distinction between statutes and constitutional amendments has been that amendments were required to be voted on by the people, while statutes were infrequently submitted to a popular referendum. But the Delaware constitution of 1897 does not require proposed amendments to be submitted to a popular vote. Virginia (1902) and Oklahoma (1907) have made important provisions of their constitutions subject to amendment by legislative act,229 and similar provisions have not been uncommon in other constitutions. In fact a feeling is beginning to develop that when constitutions contain so much of legislative detail, which requires frequent change, alteration in such matters should be left to the legislature state legislation valid. State courts cannot go beyond the United States Supreme Court in liberality toward state enactments and this almost necessarily means that they will be too cautious in order to avoid decisions which may later be overruled on appeal.

228 Oberholtzer, Referendum in America, chap iii. Dealey, Our State Constitutions, p. 9.

229 Virginia, secs. 155, 156 l. Oklahoma, Art. ix, sec. 35; Art. xii, sec. 3; Art xx, sec. 2. Such alterations will, without doubt, be dealt with by the courts merely as ordinary statutes.

and not be submitted to the people. Dr. Whitten has said: "If it seems desirable to include matters of detail in the constitution, special provision should be made for their amendment by a two-thirds vote of the legislature or by two suceeding legislatures without submission to the people . the compulsory referendum on all amendments to the constitution is most objectionable, since it burdens our elections with votes on questions in which the people have no interest.'

" 230

But as yet there is little tendency to reduce the popular participation in the amendment of state constitutions, and the distinction in form of enactment between constitutions and statutes is disappearing largely through the increased popular participation in ordinary legislation—through the use of the referendum upon ordinary statutes. South Dakota in 1898, Utah in 1900, 0,231 Oregon in 1902 and 1906, Nevada in 1904, Montana in 1906, Oklahoma in 1907, and Maine and Missouri in 1908 have adopted the referendum for ordinary legislation. Nevada did not adopt the initiative at all; Maine and Montana adopted the initiative for ordinary legislation, but specifically provided that it should not apply to constitutional amendments, and the South Dakota initiative also does not apply to constitutional amendments. Maine, Montana, and South Dakota therefore give less popular participation in the amendment of their constitutions than they do in the enactment of ordinary legislation. Maine and Montana make the proposal of amendments to the people more difficult than that of laws by requiring a two-thirds vote of the legislature for the submission of amendments, and South Dakota by requiring

a

230 N. Y. State Library, Review of Legislation, 1901, p. 29. For a further discussion of this subject see below, p. 289.

231 But the Utah amendment required legislation to put it into operation, and such legislation has not been enacted.

» 232

majority of the members elected to each of the two houses." In Nevada the legislative proposal of amendments to the people is made more difficult than that of ordinary laws by the requirement that amendments be adopted by two successive legislatures before being submitted to the people. But these slight differences do not obscure the fundamental fact that both laws and amendments are subjected to the same form of popular referendum.

votes.

The three states of Oregon, Missouri, and Oklahoma apply both the initiative and referendum to ordinary statutes and constitutional amendments. The initiative and referendum amendments of Oregon (1902) and Missouri (1908) permit the adoption of constitutional amendments and of statutes in precisely the same manner; both amendments and statutes may be proposed by the same number of initiative petitioners, and adopted by the same number of popular In these states a measure may be called either a constitutional amendment or a law, at the discretion of those who propose it. The Oklahoma (1907) initiative and referendum provisions make a distinction between constitutional amendments and statutes by requiring a petition of fifteen per cent of the legal voters to initiate a constitutional amendment, while only eight per cent is required to propose measures of ordinary legislation; 233 and by requiring upon constitutional amendments a vote of a majority of all the electors voting at the election,234 while laws passed

232 There are similar distinctions with reference to the legislative submission of amendments and proposed laws in Oregon, Oklahoma, and Missouri.

233 A proposed amendment which was rejected by Missouri in 1904 made a similar distinction between constitutional amendments and laws, by requiring a larger popular petition for the proposal of amend

ments.

234 The same rule applies to measures of ordinary legislation initiated by popular petition; the popular initiative, and the amend

by the legislature which are submitted to a popular referendum become effective" when approved by a majority of the votes cast thereon."

It is clear, then, that a long step has already been taken toward employing the same methods for enacting both ordinary statutes and constitutional amendments. What is

apt to be the attitude of the state courts under these new conditions? Suppose, for example, that a measure should in Oregon be initiated by popular petition and approved by the people as a law although it might as well have been submitted as an amendment, would the state court be justified in declaring such a law invalid as in violation of limitations contained in the state constitution? Such an attitude of the state court could of course be circumvented by calling all initiated measures (and all measures submitted to the people by the legislature), amendments, and if the courts preserved a strict attitude toward legislation, a great body of ordinary legislation might well be adopted as constitutional amendments. Again, the distinction in fact having

ing process, are therefore practically worthless in Oklahoma. See pp. 188-190.

In Lozier v. Alexander Drug Co., 99 Pac., 808, was involved an effort on the part of the Oklahoma legislature to submit a measure at the same time both as referendum law and as proposed amendment. If the measure received a sufficient vote it was to become a part of the constitution; if it received a majority of the votes cast upon its adoption or rejection it would have been continued in force simply as a law; and if a majority of the votes cast upon the measure were against its adoption it was to be repealed as law. The court held that such submission was improper and that the adverse vote actually cast therefor did not repeal the measure as a law, or have any effect whatever. The syllabus written by the court says: 'While a proposition to amend the prohibition article of the constitution . . . and a proposition for the approval or rejection or repeal of article 1 of the enforcing act . . . may be submitted at the same election, the two cannot be united in one proposition, so as to have one expression of the voter answer both propositions."

disappeared, if the state judicial power over measures called laws really hindered popular action, the result would probably be a constitutional amendment altogether denying such power to the courts. And this is what may naturally be expected in the states adopting the initiative and referendum, unless the courts treat laws approved by the people with great respect. This possibility was pointed out somewhat clearly by Mr. A. Lawrence Lowell some years ago. He said: "Our whole political system rests on the distinction between constitutional and other laws. The former are the solemn principles laid down by the people in its ultimate sovereignty; the latter are regulations made by its representatives within the limits of their authority, and the courts can hold unauthorized and void any act which exceeds those limits. The courts can do this because they are maintaining against the legislature the fundamental principles which the people themselves have determined to support, and they can do it only so long as the people feel that the constitution is something more sacred and enduring than ordinary laws, something that derives its force from a higher authority. Now, if all laws received their sanction from a direct popular vote, this distinction would disappear. There would cease to be any reason for considering one law more sacred than another, and hence our courts would soon lose their power to pass upon the constitutionality of statutes. The courts have in general no such power in Switzerland, where indeed the distinction between constitutional and other laws is not so clearly marked as in America.” 235

In general one may agree with President Lowell, but it is hardly possible to assent to the statement that the distinction between state statutes and state constitutions forms the

235 Governments and Parties in Continental Europe, ii, 296-297; International Journal of Ethics, vi, 59 (1895-96).