"1232

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.

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 votes. 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).

"keystone of our system" of government. In fact such a distinction has already been to a large extent destroyed by the state courts themselves. Then too, by the fourteenth amendment we have placed private rights under the protection of the federal courts, and have to a large extent done away with any advantage which may have been derived from the state judicial power to declare state laws invalid upon either state or federal constitutional grounds.23 The power of state courts, in the protection of private rights, to annul state constitutional and statutory enactments may under present conditions be likened to a fifth wheel on the governmental coach-it performs no useful function in protecting substantial rights, which is not already performed by the federal courts, and serves simply to retard a final and uniform settlement of questions of federal constitutional law, in so far as they affect the powers of the states. The judicial control over legislation is not in any case an unmixed blessing, because it decreases legislative efficiency and as employed to the present time has often checked for many years needed reforms which the courts have been forced to accept in the end, but the state judicial power over legislation when employed as frequently and as irresponsibly as

236 The statement here is one with reference to the broader guaranties of life, liberty, and property, which the courts have construed so as to give themselves discretionary control over all social and industrial legislation. State constitutional guaranties of this character have been of no value since the fourteenth amendment. State restrictions regarding the passage of laws, special legislation, tax and debt limitations, etc., are sufficiently definite not to afford the courts a wide range of discretion in declaring laws invalid. So too as to the provision in some constitutions that special laws shall not be employed when general laws can be made applicable, and that this question shall be one for the courts; the provision is a definite one which grants to the courts a certain amount of legislative power, and must be judged by its results, but it gives the courts no discretionary control over legislation of a general character.

during the past thirty years, can hardly be considered an instrument of very great value.237 In fact the referendum has in some cases been advocated because of the belief that it will weaken or destroy this very power.238

But we should not infer from what has been said that the enactment of laws by the referendum will entirely destroy state judicial control over legislation, even when such control is based upon state constitutional limitations.239 It has already been shown that amendments are subject to state constitutional provisions regarding the procedure of the amending process, and would be subject to limitations, if there were any, as to the substance of amendments. Now with reference to legislation there are numerous constitutional restrictions both as to form and substance, which will for some time at least probably be enforced by the courts against referendum laws just as against laws enacted by the

237 "The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility. It is no light thing to do that." Thayer's John Marshall (1901), p. 107. When the courts assume the power to prevent or retard reforms of a social or industrial character, and thus to interfere in questions of policy, which have become more or less political in character, they necessarily lose in popular respect, and such has been the case in recent years.

238" And the issue should be met candidly and the friends of the movement for direct legislation should admit frankly that the purpose of their cause is two-fold: First, to compel legislatures to act quickly and without evasion, and Second, to circumvent the veto of such courts as are elective, and hence dependent upon popular majorities, and to put whatever righteousness there is in a definitely registered expression of popular will before such courts as are not elective to stay them in their vetoes. For the veto power of the American courts over legislation-under the assumed right to declare legislation "unconstitutional "-is one of the most cruel and ruthless checks upon democracy permitted by any civilized people." William Allen White in American Magazine, vol. 67, p. 412 (Feb., 1909).

289 Unregulated and unrestrained state judicial control upon federal grounds remains in any case unless the judiciary act be amended.