This paper is a chapter from The Battle Over Citizen Lawmaking. You can purchase the book here. Also see the original version of Democracy’s Journey prior to editing.

By Dennis Polhill

Many historians will argue, and I will agree, that Democracy has its roots in Greek and Roman history. However, for the sake of time and space, I have chosen to begin the discussion of “Democracy’s journey” in the period of English history that immediately preceded the founding of America. This is relevant in my opinion because it is the undemocratic underpinnings of English governance during this period of time that lead to the push for freedom in America and eventually the adoption of initiative and referendum.

Historical Backdrop
The dominant form of government throughout all of human existence has been Kings. Sometimes called Caesar, Czar, Pharaoh, Caliph, Emperor, Kaiser, or Chief, the system was the same. One man determined all aspects of life for all of the people. Because “the King was the law” fairness and consistency were no more than occasionally dreamt ideals. Individual rights existed only to the extent that the King granted them. Because Kings were granted their power to rule from God, the King’s eldest son typically became the next King.

As society grew larger, it was increasingly difficult for Kings to oversee an enlarging geography. As a result the system of Feudalism, using lesser Kings called barons, earls, and lords evolved. To administer the increasing number of items requiring the attention of the King, the corps of advisors in service to the King grew larger, more bureaucratic and more corrupt. Together the King, the barons, earls, lords, and their advisors, made up society’s ruling class, called the aristocracy. Slavery was common and non-slaves were not much better off. The role of commoners or serfs in this caste system was to work and to pay tribute.

Island Feudalism Leads to Laws
England was somewhat insulated from the more frequent Feudalistic conflicts of mainland Europe. Thus, internal domestic concerns reached
center stage sooner. The natural tension between the King and his barons, earls and lords came to a head in 1215. A collection of barons had mutinied, defeating the King’s army. The Magna Carta was then drafted and defined Feudalistic Rights in 63 written articles. The single revolutionary notion achieved by the Magna Carta was that there should be limitations upon the absolute power of the King. The Magna Carta was a necessary step, but more time would be needed to invent democracy.

The Magna Carta did more to help the barons than the commoners. It reorganized the judicial system; it abolished tax assessments without con-sent; it standardized penalties for felonies; and trials were to be conduct-ed according to strict rules of procedure. Although the Pope voided the Magna Carta, it was reissued in 1217. In 1258, again over taxation, the barons revolted, forcing the Baronial Council to become permanent. The permanent Baronial Council was the first vestige of the House of Lords of Parliament. The Magna Carta was modified and confirmed by Parliament in 1297.

Conflict over the divine right of Kings versus limitations on his powers continued for centuries. In the 17th century, religious fragmentation and persecution, and the lack of individual liberties, fueled internal turmoil and emigration to the New World. Royal abuses had become so extreme that in 1628 Parliament passed the Petition of Rights. The Petition enumerated abuses and asked that they cease. The King responded by forcing Parliament to adjourn and imprisoning parliamentary leaders. An eleven years religious war against the Scots forced the King to convene Parliament to raise taxes. Unfriendly to the idea, Parliament was immediately adjourned and a new Parliament convened in 1640. But the new Parliament was even less friendly to the King and quickly arrested and executed one of the King’s closest advisors for treason, emphasizing the view that the King and his advisors were not above the law.

Soon after, a national referendum was proposed on the abolition of the monarchy and the House of Lords. The House of Commons was created which would be elected by universal male suffrage but limited by a bill of rights. However, the King refused to cooperate and was convicted of violating his coronation oath by attacking the people’s liberties, and was publicly beheaded in 1649. Parliament took unilateral control of government under the dictatorial leadership of Oliver Cromwell. The state-preferred religion changed, but religious persecution continued. Parliament was purged and Cromwell cruelly suppressed the Irish and Scots. Soon, the Commonwealth began to crumble. Upon Cromwell’s death, his son proved too weak to maintain control and so the son of the beheaded King was asked to return in 1660 and the Monarchy was restored.

John Locke
Events during this period influenced the thinking of John Locke, arguably the foremost political thinker of all times. Locke was born in 1632 and was educated at Oxford University. After teaching briefly, he became a physician. Uncomfortable with the restoration of the monarchy, Locke went to France in 1675. He returned in 1679 only to discover religious persecution as rampant as ever, and returned to the Continent until 1689. He was a philosophical empiricalist emphasizing the importance of experience and experimentation in the pursuit of knowledge. His two most important writings, Essay Concerning Human Understanding and Two Treatises o f Government were written in 1690. Locke attacked the theory of divine right of Kings and argued that sovereignty resided with the people, not the state. The state was limited by civil and “natural” law. It was government’s duty to protect natural rights, such as life, liberty, property, and religious freedom. He advocated checks and balances via three branches of government and separation of church and state. Locke held that revolution was not only a natural right, but also an obligation.

The contest for supremacy between the King and Parliament continued after Cromwell’s death. Finally the divine right of Kings ended with the Glorious Revolution in 1688. In a Parliamentary vote, the Crown was taken from James II and offered to William and Mary conditioned upon a written Declaration of Rights, which enumerated rights in similar fashion to what was to become the Bill of Rights in the U.S. Constitution.

Evolution of Sovereignty
During this period, John Locke introduced the next revolutionary notion: that the people were sovereign, not the King. The King-by-proxy government of the American colonies, proved both ineffective and largely irrelevant to the increasingly self-reliant colonists.

Locke’s ideas soon took hold in the American colonies. Thomas Jefferson, a reader of Locke, based many of his beliefs on Locke’s theories, which can easily be seen in his writings. A perfect example is Jefferson’s belief that “[t]he people.. . are the only sure reliance for the preservation of our liberty.” It’s that principal, that one simple statement, that best summarizes not only Jefferson’s and Locke’s beliefs, but also the beliefs that America was founded upon.

The Evolution of Initiative and Referendum in the United States
It wasn’t long before the American colonies had tired of the undemocratic governance by the Crown and soon gained their independence. Then came the tough job of designing a system of government that would recognize the sovereignty of the people while creating a strong government that would insure the stability of a newly formed country. Even though many historians believe initiative and referendum was a subject of discussion, it was left out of the original constitution- as was women’s suffrage and the abolishment of slavery.

However, Jefferson was a strong and vocal advocate of the referendum process, which in his view recognized the people to be the sovereign. Where-as the King of England spoke of his power to govern being derived from God, Jefferson knew that those chosen to represent the citizenry as envisioned in a republican form of government were only empowered by the people.

James Madison, as did Jefferson, knew too well the possibility that in a republic, those chosen to rule can and would on occasion become consumed with their power and take actions not consistent with the Constitution- actions that represented their self-interest and not the interest of the people. For this reason, a series of checks-and-balances were placed in the U.S. Constitution in order to right the errors caused when elected representatives chose to rule unconstitutionally or in their own self-interest. Not only did the Founding Fathers create these checks-and-balances by one branch of government over the next, they created a provision in Article V of the Constitution that allowed the people the right to make change and/or restore our Constitution absent action by the Government. Unfortunately this process still relied on some form of action by those in power and therefore can be argued as being unusable by the citizenry since it has never been utilized in over 200 years.

The Founding Fathers at the state level created republican governments on a smaller scale that mirrored that of the Federal Government. In these constitutions a series of checks-and-balances were created to take into account the possible abuse of power by elected representatives and to protect the people from an out of control government- when and if that were to happen. But what the citizens began to realize in the late 1800s was that no matter what checks-and-balances existed, the people had no direct ability to reign in an out-of-touch government or government paralyzed by inaction.

Then came the Populist Party of the 1890s. Its members had become outraged that moneyed special interest groups controlled government, and that the people had no ability to break this control. They soon began to pro-pose a comprehensive platform of political reforms. They advocated women’s suffrage, secret ballots, direct election of U.S. Senators, primary elections and initiative and referendum. Difficult as it would be to envision modern political systems without these reforms, they were considered quite extreme changes in the 1890s.

Perhaps the most revolutionary Populist reform was initiative and popular referendum. These forms of initiative and referendum, as well as the already established legislative referendum- which Jefferson championed in the late 1700s- acknowledged that the authority to legislate and govern was delegated by the people and reaffirmed that the people were the only true sovereign- as Jefferson and Locke had envisioned. They right-fully believed that government without the consent of the governed was tyranny and because authority, but not responsibility, can be delegated, a mechanism to un-delegate, when appropriate, was a proper check on the process of legislating.

It should be noted and emphasized that the move to establish initiative and referendum was not a movement to change our system of government or abolish representative government- but to enhance it. Our Founding Fathers at the state and federal levels created wonderful documents, but they were documents based on compromise. They realized that they would need to be changed which is why they created a mechanism to alter them when necessary. The system of checks and balances were created as a theoretical system based on how to check the power of one branch of government with another- but it was an unproven system. As time progressed, the citizens discovered that this theoretical system of checks and balances at the state and federal level worked- but not good enough- for their were times when elected officials chose not to act in the people’s best interest. For this reason, the Populists/Progressives strove to strengthen the system of checks and balances on government at the state level and advocated the initiative and referendum process. Additionally it must be remembered that we have two tiers of Founding Fathers in this country- those at the federal level and those at the state level. The Founding Fathers of Oklahoma and Alaska, for example, chose to put initiative and referendum in their states’ original constitutions. It would be wrong in my opinion to pass judgment that the Founding Fathers at the state level were in some way inferior to our Founding Fathers at the federal level.

In 1897, Nebraska became the first state to allow cities to place initiative and referendum in their charters. One year later, the Populists adopt-ed methods from the 1848 Swiss Constitution and successfully amended them into the South Dakota Constitution. On November 5, 1898, South Dakota became the first state to adopt statewide initiative and popular referendum. Oregon followed in 1902 when Oregon voters approved initiative and popular referendum by an 11-to-1 margin. Other states soon followed. In 1906 Montana voters approved an initiative and popular ref-erendum amendment proposed by the state legislature. Oklahoma became the first state to provide for the initiative and popular referendum in its original constitution in 1907. Maine and Michigan passed initiative and popular referendum amendments in 1908.

In 1911 California placed initiative and popular referendum in their constitution. Other states were to follow- but even with popular support in many states, the elected class refused the will of the people and did not enact this popular reform. In Texas; for example, the people actually had the opportunity to vote for initiative and popular referendum in 1914, but voted it down because the amendment proposed by the legislature would have required that signatures be gathered from 20% of the registered voters in the state -a number twice as large as what was required in any other state. The proponents for initiative and popular referendum felt it was more important to get a useable process than one that would have maintained the status quo and provided no benefit to the citizenry. However, the legislature used this defeat as an excuse to claim that initiative and popular referendum was not wanted by the people and therefore effectively killed the movement in Texas.

Eventually, between 1898 and 1918, 24 states adopted initiative or popular referendum- mostly in the West. The expansion of initiative and popular referendum in the West fit more with the Westerners belief of populism- that the people should rule the elected and not allow the elected to rule the people. Unfortunately in the East and South this was not the case. Those that were in power were opposed to the expansion of initiative and popular referendum because they were concerned that blacks and immigrants would use the process to enact reforms that were not consistent with the beliefs of the ruling class.

In 1959, when Alaska became a state, the citizens had adopted the power of initiative and popular referendum. Then in 1972, Floridians adopted statewide initiative. Mississippians in 1992 restored initiative and referendum to their constitution, 70 years after the state Supreme Court invalidated the election creating the process. Mississippi became the newest and last state to get this valuable tool.

The credit for the establishment of initiative and popular referendum in this country belongs with the Progressives. They worked steadily to dismantle the political machines and bosses that controlled American politics by pushing reforms eliminating the influence the special interest had on political parties and the government. Their goal, as is that of today’s proponents of the initiative and popular referendum, is to ensure that elect-ed officials remain accountable to the electorate.

Conclusion
The evolution from tyranny to democracy has been a long and difficult road- a road that is never ending. But as you can see, the evolution of initiative and referendum is not contrary to the evolution of representative democracy- but an enhancement to it. The two are designed to work hand-in-hand with each other. The following chapter by Rob Natelson specifically addresses this issue.

The long journey for democracy that began with the Magna Carta is far from finished. Though its future form may be unclear today, we can be certain that democracy will increase and that initiative and referendum will play a role in determining future democratic systems.

Initiative and Referendum Historical Timeline
This information compiled from research contained in David Schmidt’s Citizen Lawmakers and from independent research conducted by the Initiative & Referendum Institute.

1775 In his proposed 1775 Virginia state constitution, Thomas Jefferson includes a requirement that the constitution must be approved by the voters in a statewide referendum before it can take effect. Unfortunately, because he was hundred of miles from Virginia at the time attending the Continental Congress, delegates to the Virginia Convention did not receive the proposal until after the convention was already over.
1776 Georgia delegates gather in Savannah to draft their state’s constitution. The constitution includes a provision that would allow amendments whenever a majority of voters in each county signed petitions calling for a convention, but the provision is never invoked.
1778 Massachusetts becomes the first state to hold a statewide legislative referendum to adopt its constitution. The voters reject it by a five-to-one margin, forcing the legislature to rewrite its proposal.
1792 New Hampshire becomes the second state to hold a statewide legislative referendum to adopt its constitution.
1830 Voters in Virginia demand the power to veto amendments to their state constitution and are given it.
1834 Alabama, Connecticut, Georgia, Maine, Mississippi, New York, North Carolina, and Rhode Island adopt provisions preventing their state constitutions from being amended without the approval of the voters.
1848 The Swiss Constitution includes provisions for initiative and popular referendum.
1857 Congress requires that voters must approve all state constitutions proposed after 1857.
1885 Father Robert Haire, a priest and labor activist from Aberdeen, South Dakota, and Benjamin Urner, a newspaper publisher from New Jersey become the first Americans to propose giving the people statewide initiative and popular referendum power.
1897 Nebraska becomes the first state to allow its cities to use initiative and popular referendum.
1898 South Dakota becomes the first state to adopt statewide initiative and popular referendum.
1900 Utah becomes the second state to adopt statewide initiative and popular referendum.
1901 The Illinois legislature creates a statewide nonbinding advisory initiative process.
1902 Oregon becomes the third state to adopt statewide initiative and popular referendum. In Illinois, using a statewide nonbinding advisory initiative process, citizens place an advisory question on the ballot asking whether or not Illinois should adopt a real initiative and referendum process-voters say yes, but the legislature ignores them.
1904 Oregon is the first state to place a statewide initiative on the bal-lot. In Missouri, voters defeat a measure that would have established statewide initiative and popular referendum.
1905 Nevada adopts statewide popular referendum only.
1906 Montana adopts statewide initiative and popular referendum. Delaware voters approve an advisory referendum put on the bal-lot by the state legislature, asking whether they want the initiative process- but the legislature ignores the mandate.
1907 Oklahoma becomes the first state to provide for statewide initiative and popular referendum in its original constitution.
1908 Michigan and Maine adopt statewide initiative and popular referendum. Unfortunately, Michigan’s initiative procedures are so difficult that, under them, citizens are unable to place a single initiative on the ballot. Missouri adopts statewide initiative and popular referendum.
1910 Arkansas and Colorado adopt statewide initiative and popular referendum. Kentucky adopts statewide popular referendum. Illinois voters again approve a citizen- initiated nonbinding advisory question in support of statewide initiative and popular referendum- and the legislature again ignores them.
1911 Arizona and California adopt statewide initiative and popular referendum. New Mexico adopts only statewide popular referendum.
1912 Idaho, Nebraska, Ohio and Washington adopt statewide initiative and popular referendum. Nevada adopts a statewide initiative process, complementing its statewide popular referendum process adopted in 1905. A majority of Wyoming voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the amendment; but Wyoming’s constitution requires that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- so the measure fails. A majority of Mississippi voters voting on a constitutional amendment to adopt statewide initiative and popular referendum also approve the amendment; but, like Wyoming, a constitutional requirement that all amendments also receive a majority vote of all voters voting in the election, defeats the measure.
1913 Michigan initiative and popular referendum supporters lobby the legislature to pass amendments simplifying its statewide initiative and popular referendum process, a process so difficult that it is unusable. The legislature passes the amendments and voters approve them.
1914 Mississippi and North Dakota adopt statewide initiative and popular referendum. Wisconsin and Texas voters defeat measures creating a statewide initiative and popular referendum process. A majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the amendment; but Minnesota’s constitution requires that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- so the measure fails.
1915 Maryland adopts popular referendum.
1916 A majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum again approve the amendment; but the Minnesota constitution’s requirement that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- again dooms the measure.
1918 Massachusetts adopts statewide initiative and popular referendum. North Dakotans vote and approve a more lenient initiative process. The amendment passed by the North Dakota legislature and adopted by the voters in 1914 had such strict procedures that no initiatives qualified for the ballot in the following election, so initiative proponents put an initiative on the 1918 ballot to ease the procedures.
1922 The Mississippi Supreme Court overturns Mississippi’s initiative and popular referendum process.
1956 Alaska adopts statewide initiative and popular referendum as part of its new constitution.
1968 Wyoming adopts statewide initiative and popular referendum. 1970 Illinois adopts a very limited initiative process.
1972 Florida adopts statewide initiative.
1977 Hardie v. Eu is decided by the California Supreme Court which finds unconstitutional the Political Reform Act’s cap on expenditures for qualifying ballot measures since it violates the First Amendment of the U.S. Constitution. The District of Columbia adopts initiative and popular referendum. The U.S. Supreme Court rules in First National Bank o f Boston v. Bellotti that state laws prohibiting or limiting corporate contributions or spending in initiative campaigns violates the First and Fourteenth Amendment.
1980 For the third time, a majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the measure; but for the third time the Minnesota constitution’s requirement that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself dooms the measure. The U.S. Supreme Court rules in Pruneyard Shopping Center v. Robins that state constitutional provisions that permit political activity at a privately- owned shopping center does not violate federal constitutional private property rights of owner.
1981 The U.S. Supreme Court rules in Citizens Against Rent Control v. Berkeley that a California city’s ordinance to impose a limit on contributions to committees formed to support or oppose ballot measures violates the First Amendment.
1986 Rhode Island voters defeat a measure establishing statewide initiative and popular referendum.
1988 The U.S. Supreme Court rules in Meyer v. Grant that states cannot prohibit paid signature gathering, saying that initiative petitions are protected political speech.
1992 Mississippi adopts statewide initiative for the second time.
1996 Rhode Island voters approve a nonbinding advisory question put on the ballot by the legislature asking if they would like to have a statewide initiative and popular referendum process- but the legislature ignores them.
1998 The Initiative & Referendum Institute is formed to study and defend the I&R process on the 100 year anniversary of the adoption of the statewide initiative and popular referendum process in America
1999 The Minnesota House of Representatives approves a constitutional amendment that would establish a statewide initiative and popular referendum process. The U.S. Supreme Court declares in Buckley v. American Constitutional Law Foundation that, among other things, states cannot require that petition circulators be registered voters.
2000 The Minnesota Senate kills the initiative and referendum bill passed by the House the year before. The Initiative & Referendum Institute files suit against the U.S. Postal Service’s 1998 prohibition on collecting signatures on initiative petitions on postal property.