CHAPTER V

1

THE WORKING OF THE CONSTITUTIONAL REFERENDUM 1

Attention has already been called to the fact that the submission of proposed amendments is much more frequent in some states than in others.2 This is due in part to restrictions upon the amending process. During the period 1899-1908, for example, no proposed amendments were submitted in Vermont, and the year 1900 was the only one in which a submission could have been had; so the con

1 The discussion here is based mainly upon the experience of the states during the ten-year period, 1899-1908; it is not a study of the referendum in general, but simply an attempt to discover something as to the working of the compulsory referendum on constitutional questions. In an appendix are printed tables giving, so far as information has been obtainable, the results of popular votes upon constitutional questions from 1899 to 1908. For some states information is available covering longer periods: the New York Red Book for 1910, pp. 317-319, gives the popular votes in New York from 1845 to 1905; the Michigan Manual for 1909, pp. 552-557, gives the votes for that state from 1850 to 1908; Dr. Edward M. Hartwell has collected in the Monthly Bulletin of the Statistics Department of the city of Boston, vol. xi, pp. 158-160, a complete record of constitutional referenda in Massachusetts from 1780 to 1907; in the Political Science Quar1 terly, vol. xiii, pp. 1-18, Mr. Samuel E. Moffett gives a statement of constitutional referenda in California from 1879 to 1896, and the record in this state for 1898 may be found in the California Blue Book for 1899, pp. 244, 245. The Rhode Island Manual for 1909, pp. 130-140 gives votes upon all constitutional questions submitted to the people of 'Rhode Island; Colby's Manual of the Constitution of New Hampshire (1902), and the Official Vote of South Dakota, 1889-1908 (1908), give the votes in these states upon constitutional questions.

2 It should be repeated here that in Delaware constitutional amendments are not submitted to a vote of the people,

stitutional requirements of Pennsylvania, New Jersey, and Tennessee that proposals shall be submitted only at certain intervals, and the New Hampshire plan of permitting proposals only by means of a convention, cause a rather infrequent proposal of amendments in these states. So too, in

a number of the states, where the adoption of amendments is rendered difficult by the popular majority required, amendments are not frequently proposed to a vote of the people, because of a feeling that such proposal is useless. This is probably the reason for rather infrequent proposals in Illinois, Indiana, and Wyoming. But that amendments are proposed more frequently in some states than in others cannot be explained by the relative ease or difficulty of adopting amendments. In Illinois, Indiana, and Wyoming few amendments were proposed during the period from 1899 to 1908, but during the same period thirteen amendments were proposed in Minnesota, whose constitution is equally as difficult to amend. During the same period only one amendment was proposed in Massachusetts and but four in Iowa, while fourteen were proposed in New York, whose amending procedure is equally as difficult as that of Iowa and Massachusetts.

There is, however, some relationship between the frequency of proposed amendments and the age of the constitution under which a state is living. The proposal of amendments is comparatively infrequent in the New England States and in several states of the Middle West, and this, while due in part to the difficulty of amendment, may also be partly attributed to the conservatism of these states and to the fact that their constituions are older and less elaborate than the instruments adopted by other states in recent years; they contain fewer details of a legislative character, which require frequent alteration. The use of the amending process is more common in the states with newer

constitutions, and particularly in those whose constitutions cover a wide range of details not of a fundamental character. The state of California has been busily altering its constitution almost from the time when that instrument was adopted in 1879. Louisiana adopted a new and very elaborate constitution in 1898, and two years later began a process of frequent and almost continuous amendment. Oklahoma adopted in 1907 a constitution which exceeds that of any other state in elaborate detail, and in 1908 began efforts to amend this instrument-efforts which were unsuccessful because of the cumbersome amending procedure adopted by this state. But although the frequency with which amendments are proposed in the several states bears some close relation both to the relative ease or difficulty of adopting amendments, and to the simplicity or elaborateness of the instrument sought to be amended, yet the fact is that of two states seemingly under similar conditions in these respects, proposals of amendment will be more frequent in one than in another.

In many states there is frequent resort to the use of the amending process. During the decade, 1899-1908, four hundred and seventy-two constitutional questions were submitted to the people of the several states. Of these fiftyone were submitted in California, fifty in Louisiana, thirty in Missouri, twenty-two each in Oregon and Michigan, twenty-one in Florida, and seventeen each in Colorado and Texas. Ten or more amendments were submitted in each of the states of Georgia, Idaho, Kansas, Minnesota, New York, New Hampshire, Ohio, South Carolina, and South Dakota. That is, there was an average of one or more constitutional questions each year submitted in each of these states. North Dakota and Utah, each with nine proposed

3 Reference has already been made to the fact that most amend

amendments during this period; Wisconsin and New Jersey with eight; Montana, Tennessee, and West Virginia with seven; Connecticut, Rhode Island, and Washington, each with six, complete the list of states which made anything like frequent use of the amending procedure. The proposal of numerous constitutional amendments has been to a large extent a development of the past twenty years, but the amending process has been used most frequently during the last decade.* Yet in some states the proposal of amendments has been common before the decade here more immediately under consideration. In California thirty-five proposed amendments were submitted to the people between 1883 and 1898. Between the years 1860 and 1898 sixty-two constitutional questions were submitted to the voters of Michigan. In New York thirty-eight such votes were had between the years 1854 and 1896. During the period, 1780-1907, fifty-nine constitutional referenda were had in Massachusetts.

It has already been suggested that most of our state constitutions have come to be filled with legislative details which require frequent alteration. The amending process is the only means by which such alterations may be made. For this reason we find that the great body of proposed amendments relate to matters of detail, in which the public at large is not and cannot be very much interested. Of the four hundred and seventy-two questions submitted to the people during the decade, 1899-1908, perhaps not more than

ments are now submitted at general elections in even-numbered years. Some are submitted at state elections in odd years, as in New York, but this is the less usual procedure.

4 J. B. Phillips, Recent State Constitution-Making, Yale Review, xii, 389. J. W. Garner in American Political Science Review, i. 245247. See also a paper by the present writer in Proceedings of the American Political Science Association, 1908, p. 149.

sixty were fundamental in character, and a very large number were of not more than purely local interest. Many of the proposals were local and special legislation of the worst type.

A popular vote upon proposed amendments is of little value (1) if the questions are so trivial or so local in character as not to be of interest to those to whom they are submitted, or (2) if the questions are so complicated and technical that the average voter has no means of informing himself regarding them, or (3) if the questions are submitted in such great numbers that the voter, even if he might possibly render a satisfactory judgment upon any one of them, cannot inform himself regarding the merits of all the measures upon which he must pass.

Thanks to the rather strict constitutional provisions in many states, proposed amendments are not usually complicated in character, because each distinct proposal must be submitted separately. But many proposals are of a decidedly trivial character. In California, Louisiana, Michigan, and South Carolina, for example, a number of the amendments proposed during the ten years under consideration were of purely local interest. The exemption of particular educational institutions from taxation in California and questions concerning the government and debts of New Orleans are not matters calculated to arouse great popular interest throughout the states of California and Louisiana. Nor was it to be expected that the people of Michigan should become at all excited over the establishment of a board of auditors for Genesee county or over increasing the salary of the circuit judge of that county. In South

5 See pp. 178-183. Issues of a somewhat complex character may, of course, be raised by the submission of complete constitutions to the people, but usually the question of adopting or rejecting a new constitution gives rise to issues of a rather distinct character.