This is the original version of a chapter from The Battle Over Citizen Lawmaking, prior to editing. Also see the published version.
By Dennis Polhill
The most significant idea of the second millennium is that government powers must be limited. This is the foundation principle for democracy.
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.
Before there were big Kings, there were little Kings. Living in caves, the little Kings gained their initial power by brute force. They decided who would and who would not eat; what crimes would receive what punishment; and when to raid and pillage the neighbors.
As society grew larger, little Kings became big Kings. It was increasingly difficult 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 big King, the corps of advisors in service to the King grew larger, more bureaucratic and more corrupt. Together the big King, the lesser Kings, 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 cast 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 centerstage sooner. The natural tension between the big King and the lesser Kings came to a head in 1215. A collection of barons had mutinied, defeating the King’s army. Magna Carta in 63 written articles defined Feudalistic Rights. The single revolutionary notion achieved by Magna Carta was that there should be limitations upon the absolute power of the King. Magna Carta was a necessary step. But more time would be needed to invent democracy.
Magna Carta did more to help of the barons than the commoners. It reorganized the judicial system; it abolished tax assessments without consent, which eventually grew into Parliament; it standardized penalties for felonies; and trials were to be conducted according to strict rules of procedure. Although the Pope voided the charter, 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. Magna Carta was modified and confirmed by Parliament in 1297.
Conflict over the divine right of Kings versus limitations continued for centuries. In the 17th century religious fragmentation and persecution 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 11 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.
A national Referendum was proposed on the abolition of the monarchy and the House of Lords. A House of Commons would be elected by universal male suffrage but limited by a bill of rights. The King refused to cooperate, 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, Oliver Cromwell. The state-preferred religion changed, but religious persecution continued. Parliament was purged. Cromwell cruelly suppressed the Irish and Scots. The Commonwealth began to crumble. Upon Cromwell’s death, his son proved too weak to maintain control and the son of the beheaded King was asked to return in 1660.
JOHN LOCKE
Contemporary events evidently 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, returned in 1679 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 of 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 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 the U.S. Bill of Rights.
CONTRASTING CONSTITITONS
Other than the three great Charters of English liberty discussed above (Magna Carta, Petition of Rights, and Declaration of Rights), Great Britain has no written constitution. Many consider the three great Charters to comprise Britain’s constitution. The British constitution makes no mention of governmental structure; only rights.
Interestingly, the U.S. Constitution, as it emerged from the 1787 Constitutional Convention was the opposite. It focused on governmental structure only and made no mention of rights. So, what is a constitution? Dictionaries and encyclopedias avoid a comprehensive definition.
LESSONS LEARNED FROM IMPERIALISM
In the middle of the second millennium the two major contestants in claiming the World were Britain and Spain. Colonization meant the superimposition of language, laws, culture and government from the motherland. A look at the human condition today in the respective colonized countries is instructive. In virtually every case the English speaking ones are better off than the Spanish speaking ones: stronger economies, human rights, more individual wealth, bigger players in the global economy, lower poverty, less disease, longer life expectancy, higher education, more evolved democratic processes, etc. Did the British pick better countries to colonize or is there another reason? If the success of the British colonies happened to be the product of natural resources, genetics, climate, the efforts of an individual political leader, or a few technological breakthroughs, the result would be random. Because the result is virtually universal, the defining variable must be a component of the British culture. It must be the system of rights, laws and government. That no man is above the law: the rule of law, is not a trivial contribution.
EVOLUTION OF SOVEREIGNTY
Magna Carta simply established that government should be limited. For nearly 500 years the concept of limits was refined and solidified. Then 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. They would soon be ready to put Locke’s ideas into practice.
New England Town Meetings date back to the early 1600s. Elections of leaders occurred from the beginning of colonization. Thomas Jefferson suggested in 1775 that the proposed Virginia Constitution be approved by a vote of the people. In 1778 Massachusetts was the first state to hold a statewide referendum to adopt its constitution. It failed and had to be rewritten. New Hampshire adopted its constitution of 1792 by statewide referendum. When the Virginia Constitution was rewritten in 1830 the people took from their legislature the unilateral authority to amend their constitution. In 1834 eight additional states made changes to recognize the people’s sovereignty. Today 49 states acknowledge the sovereignty of their people by requiring that proposed amendments to the state constitution be approved only by vote of the electorate. Delaware is the only state that permits its legislature to amend its state constitution.
Thomas Jefferson had a firm grasp of Locke’s ideas and assigned it such importance as to advocate that it be one of three mandated readings for all students. Over 100 years Locke’s junior, at 33 Jefferson shook the foundations of conventional thinking by writing in 1776, “… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Remembering their comparatively recent experience with Cromwell, the British aristocracy accepted the notion of self-government with bemusement. The first real experiment in human history with self-government had begun.
REPUBLICAN FORM OF GOVERNMENT
Article IV, Section 4 of the U.S. Constitution states, “The United States shall guarantee to every State in this Union a Republican Form of Government …” This meant free, open, and competitive election of representatives. The concern in 1787 was that if the people of one State chose a monarch or dictator, that the inevitable friction and thirst for political domination would undermine and destabilize their experiments in self-government in other states. It is contrary to the notion of self-government to suggest that this clause infers any further limitations on how people might decide to govern themselves.
MANAGEMENT THEORY
Management students learn to lead by exercising the principles of management: planning, organizing, directing, and controlling. Subordinates are empowered to achieve their charge by the delegation of authority. Though authority is delegated, responsibility is not. Because responsibility is maintained, the manager is obliged to oversee the progress of work. When subordinates deviate from the work plan or fail to be productive, the manager takes corrective action. Tasks that require a comprehensive vision or far-reaching strategic decisions cannot be effectively delegated. The responsibility of controlling the work implies that the manager may occasionally find it necessary to un-delegate tasks, taking things into his own hands. Usually un-delegating fills a subordinate’s skill gap helping good workers to become better. Occasionally the subordinate is generally incompetent or insubordinate and the manager is compelled to take more extreme action.
Of course, the people must be the boss in any model of democratic government. This is widely understood and frequently underscored. The U.S. Constitution opens with “We the People” and goes on to make numerous limiting and insensitive pronouncements such as “Congress shall make no law …” Article I, Section 1 says, “All legislative Powers herein granted shall be vested in a Congress …” The people delegate to Congress the authority to legislate, but limited the extent of the delegated authority by the phrase “herein granted.”
State constitutions replicate the tone and terminology. In Colorado, Article V, Section 1 opens with “The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments…” Here the sovereign people delegate the authority to legislate to the general assembly, but the people are also making it absolutely clear that they are not delegating all legislative authority. They “reserve to themselves” the power to legislate when they so choose.
INSUBORDINATE LEGISLATORS
The contempt that legislators hold for petitions is not surprising. To them any petition on any subject is a personal insult. It is like saying, “You didn’t do your job. So let’s go see what the boss has to say about it.” Any person with enough talent and pride to be an elected official would naturally be offended.
However, when offense turns into action to strangle the process, the very person elected to protect and defend democracy, his constituents, and the Constitution crosses the line by subverting the institutions he swore an oath to uphold. Icon of democracy reverts to subversive tyrant. As stated in the Declaration of Independence, “A Prince, whose character is thus marked by every act which may defined a Tyrant, is unfit to be the ruler of a free people.” Penned in 1776 with King George III in mind, the phrase is surprisingly fitting for some of today’s political operatives.
Legislative attacks on the petition process are too many to discuss thoroughly. Most Initiative states observe at least one attempt per year to restrain the petition process. In 1999 there were over 100 such bills in the state of Oregon alone. The State of Colorado has been humiliated twice on the national stage for passing acts subversive to democracy, when the U.S. Supreme Court struck down legislatively imposed petition restrictions. The Court’s view is that whether the state has petitions is determined by the people of the individual state. However, once the state has the Initiative and Referendum (I&R) process, the First Amendment, protection of free political speech rules. Thus, reasonable regulations that facilitate and augment the process are permissible. Restrictions are not.
CONFLICT OF INTEREST
The petition process is daunting to undertake. Most people who consider a petition decline to pursue it. No one exercises the petition process when any other path is available. A review of the subject content of various petitions reveals the obvious. Petitions deal with two types of issues: conflict of interest issues and too-hot-to-handle issues.
Conflict of interest issues are those that are impossible for legislative bodies to address honestly due to their position. Examples include: compensation and benefits, districting, terms of office, recall, campaign finance limitations, term limits, tax and spending limitations, and regulations of the I&R process. Basically any issue that limits the power of politicians or government is a conflict of interest issue. Expecting the legislature to fairly deal with any of these examples is like asking a first grader to set his own bedtime. It just doesn’t work.
Too-hot-to-handle issues are those that carry a political price that legislators are unwilling to pay. These include those that are offensive to any side of any issue. Politicians who wish to be reelected are careful to not offend any lobbyist constituency or any grassroots group. Thus, issues with even a moderate degree of controversy tend not to be addressed in the legislature.
SPECIAL INTERESTS
The history of special interests is well-known. After the Civil War railroads and other business interests gained enormous influence over legislative bodies. Inordinately fraudulent elections placed tremendous control in the hands of corrupt political party machines. Legislators were openly purchased. Policy meant the allocation of privilege to the few. In response to criticisms insiders strove to clarify the forms of graft that were proper. Outraged groups of reformers came together first in the Populist movement of the 1890s and again as the Progressive movement of the 1900s. Betrayed by their political leaders, they advocated reforms that enlarged the democratic process by limiting the powers of their elected officials. Some of the advocated reforms included woman suffrage, secret ballots, election of U.S. Senators, primary elections, election of judges, recall petitions, Initiative petitions, Referendum (legislative challenge) petitions, voter registration, no straight party ballots, nonpartisan municipal elections, and many more.
No doubt these insiders referred to the insurgent Populists and Progressives as “special interests.” From their perspective the label was accurate. The insurgents did have different interests. Because any group of like-minded people may be referred to as a special interest, a clearer definition of the term “special interest” is needed.
Webster’s New Collegiate Dictionary defines special interest as “a person or group seeking to influence legislative or government policy to further often narrowly defined interests.” By this definition, because the Populists and Progressives were motivated on behalf of the general interest of society, they were less of a special interest than were the railroads. The word “narrowly” is key to the definition. When a broad segment of society stands to benefit from an idea, then advocacy is, by definition, not that of a special-interest.
With a clearer understanding of the term “special interest,” a closer look at what happens under the Capitol dome, is instructive. A February 7, 2000, research paper by Professor Barry Fagan, “Who Testifies and Why” tabulates all testimony on all 60 bills heard in 1999 before the Colorado Senate Finance Committee. Sixty two percent of the bills concentrated benefits narrowly. Equally important, Professor Fagan discovered that, “…chances are 96 percent that a witness is a beneficiary of that bill or representing someone who is …” Fagan explains the imbalance by public choice theory. Most witnesses are motivated by self-interest and come to testify when the benefits of testifying outweigh the costs. This occurs most frequently when benefits are concentrated narrowly. When a bill is structured as special interest legislation, favorable testimony is abundant. The legislative process sinks to the level of special-interest autonom. A similar study by James Payne, “The Public Interest,” revealed that Congressional testimony for more spending was favored by the ratio 145:1.
To state that the legislative process is heavily influenced by special interests may be an understatement. A quick look back at the list of examples of initiative petitions in the previous section, “Conflict of Interest,” reveals that hardly any are issues with narrowly concentrated benefits. Clearly the petition process is less influenced by special interests than is the legislative process under the Capitol dome.
In a March 1997 paper “The Citizen’s Initiative and Entrepreneurial Politics,” Professor Anne G. Campbell concluded, “… the initiative process in Colorado has been used primarily in attempts to benefit the public interest, and that it has rather infrequently been used to promote the objectives of special interests.”
WHAT THEY SAY ABOUT PETITIONS
As it is said, “A half truth is a whole lie.” Politics has become the deceitful art of stating half-truths. Half-truths are especially effective in misleading the less informed for the short term. This is why negative campaigning is so effective. If the opposition objects, then the false claim gains legitimacy.
From the discussion in previous sections it is known that those who dislike petitions most are those with the greatest stake in the legislative process: career politicians, lobbyists, and special interests. These groups tend to be especially well-practiced in the art of manipulating rhetoric to suit their purposes. Following is a list of the 14 most commonly heard complaints about petitions as stated by petition opponents:
1. Initiatives are the tool of special interests.
2. Initiative campaigns are influenced by money.
3. Voters are incompetent to decide complex issues.
4. Initiatives are poorly written.
5. Initiatives are often unconstitutional.
6. There are too many initiatives on the ballot.
7. Initiatives cause ballot clutter.
8. Voters do not like long ballots.
9. Initiatives benefit one philosophy.
10. People vote selfishly.
11. Many initiatives are bad ideas.
12. Initiatives place extraneous material in the Constitution.
13. Initiatives create tyranny of the majority.
14. Initiatives make the Legislature unnecessary.
A more extensive discussion of each is provided in “Are Coloradans fit to make their own laws?” By Dennis Polhill, Oct. 1996 which can be found at http://www.i2i.org/suptdocs/issupprs/ip0896.htm or http://www.iandrinstitute.org/indepth/document1/introduction.htm).
These 14 statements are more accurate when reworded slightly:
1. Initiatives provide a means of legislating when special interests control the Legislature.
2. Initiative campaigns make it more difficult for money to influence legislation.
3. Voters are competent and conscientious to decide complex issues.
4. Initiatives are not as poorly written as most legislation.
5. Initiatives are rarely unconstitutional.
6. More initiatives appear on ballots when the legislative process is not working properly.
7. Ballot clutter is augmented by old ballot format and voting procedures.
8. High voter turn out proves that voters want to vote on issues.
9. Initiatives are used by every political philosophy.
10. People vote thoughtfully.
11. Many initiatives are good ideas.
12. Initiatives rarely place extraneous material in the Constitution.
13. Initiatives can not cause “Tyranny of the Majority.”
14.Initiatives focus the legislature on issues relevant to voters.
HOW MANY ARE TOO MANY?
In all of Colorado history only 61 petitions have made it into law. The process is so difficult that the vast majority do not succeed. About 70% are defeated in election. But only one in 10 or 20 reaches the ballot at all. Hundreds more are never attempted either because people are unfamiliar with their right to petition or because they lack the resources to undertake the difficult petition process.
Because the Colorado General Assembly passes about 300 laws per year, the 61 petition-laws represent close to 0.2% of all laws. Stated in reverse: 99.8% of all Colorado law is made in the General Assembly.
These numbers overstate petition activism. At the local government level far fewer than 0.2% of laws come from petitions. Fewer than 5% of Colorado’s local governments have the petition process and those with it rarely exercise it. At the Federal government level no laws are the product of petitions.
The 0.2% also overstates petition activism at the state level nationwide. The majority of States (26) do not have the initiative petition. Several of the remainder 24 State procedures are so restrictive that the process is rendered dysfunctional. For example, scholars frequently do not even count Illinois among the list of states with I&R and the Mississippi process is so difficult that only two petitions have ever succeeded in appearing on the ballot. Of the states where petitions are most active, only two states have more petitions appear on the ballot than does Colorado. That means 47 states (94%) have no petitions or fewer petitions than Colorado.
Comprehensive data is not available to calculate an absolute number, but conceptual generalizations are possible. Less than 0.1% (1 in 1,000) of state level laws result from a petition. Possibly as little as 0.01% (1 in 10,000) of all laws come from a petition.
DIRECT DEMOCRACY
The term Direct Democracy infers a system of democratic government in which citizens are consulted on all decisions. Conversely, Indirect Democracy is a system of democratic government through elected representatives. One hundred percent implementation of either extreme is improbable and generally undesirable.
Absolute Direct Democracy, although increasingly achievable via modern technology, would quickly wear on the interest and patience of most people. Average citizens would be buried with hundreds of daily decisions regarding issues impossible for most to become adequately educated about: should the police chief received a raise, be fired, be commended, or be reprimanded? Clearly, smaller, decentralized, more devolved units of government may more effectively deal with direct involvement of their citizens. The Swiss Landsgemeinde predating 1294 and the pre-Revolutionary War New England town meetings (banned by Britain “for better regulating the government…”) provide evidence. Small groups quickly discover it expedient to divide work and specialize. Management expert, Tom Peters claims that groups begin to become bureaucratic when they grow to five people. Bureaucracy is the negative byproduct of work specialization.
Absolute Indirect Democracy is equally infeasible. In the Management Theory section it was revealed that the boss (the sovereign people) must never delegate certain tasks and must sometimes un-delegate tasks. It was also learned in the Conflict of Interest section that there are issues impossible for legislators to address honestly and other issues too difficult for legislators to resolve.
Sometimes the term Direct Democracy is used in a pejorative sense. The context leads people to believe that any more citizen participation might result in chaos or an end to life as we know it. As was discovered in a the discussion of Special Interests, a look at who is making such claims may be more informative than the actual words.
Although an Initiative petition is an example of Direct Democracy, it alone is not Direct Democracy. It would be less misleading to apply either the term Direct legislation or citizen participation.
As the wise old man said, “If you don’t ask the right question, you cannot get the right answer.” The Direct Democracy question is more accurately about “What is the appropriate level of citizen participation in their government?” Though a specific answer is currently unavailable, the vast majority of people concur that there will be more citizen participation in the future. The underlying questions are, “How soon will there be change? What form will the change take? Where will the leadership come from? Who should decide?”
DO PETITIONS DOMINATE THE PROCESS?
Knowing that at least 99.9 percent of laws come from elected officials, makes it difficult to reconcile the domination claim. It is unlikely that the average petition law is over 1000 times more important than the average legislated law? Respect for legislators might improve, however, if they passed fewer inconsequential laws. Knowing who opposes petitions and why from the discussion in previous sections, helps explain the source and motivation for this exaggeration.
But by the mere fact that they are statements from the boss, petition-laws approved by a vote of the people are and should be more consequential than legislated laws. A true representative would never dream of ignoring or subverting the stated will of people. The influence of petitions goes even farther. Failed petitions communicate much information about the concerns and priorities of the public. These expressed concerns of the general public often influence the legislative agenda. Agenda priorities suggested external to the General Assembly might be a disruption to an internally set agenda, but only if the internal agenda is out-or-sync with the people. A true representative welcomes such direction, because it allows him to do his job more effectively.
Because petitions are used by every political ideology, petition opponents can easily find examples offensive to anyone. The tax issue is an interesting study. Although some believe that taxes should be higher, the majority of people today feel that their taxes are high enough. This majority view is out-of-sync with the view of most legislators, as they frequently feel compelled to seek ways to circumvent the will of people. A recent study by University of California Professor John Matsusaka found that Initiative states are taxed 4% below the national average. Matsusaka also found during the 1930s, when the public had a greater interest in more government spending than did legislators, that Initiative states accelerated spending more rapidly than did non-Initiative states. Legislators are often out-of-sync with the people and petitions universally accelerate the democratic process, correcting the disparity.
Citizens take their voting franchise seriously. Exit polls regularly find that voters are more informed on most issues than they are on most candidates. Attempts to ascertain voter drop-off patterns are ineffective, because voters rationally skip issues they are uncertain about and seek out those issues they care about. States, like Wyoming and Minnesota, that count abstain votes (skipped votes) as something other than an “abstain,” misrepresent and distort the intent of voters.
Professors Caroline Tolbert, Daniel A. Smith, and John Gummel released new research that reverses a commonly held misperception. “The Effects of Ballot Initiatives on Voter Turnout in the American States” concluded that voter turnout was higher in Initiative states than non-Initiative states in every Presidential election and in every midterm election from 1960 through 1996. Initiatives appear to universally augment voter interest in elections.
HOW DOES MONEY INFLUENCE THE PROCESS?
Professor Anne G. Campbell has focused her research on the influence that money has on the outcome of issue elections. In a January 1999 paper, “The Effect of Campaign Spending on Initiative Campaigns,” Campbell concluded, “while overwhelming spending in opposition to a ballot measure can buy the defeat of initiatives, money has been singularly ineffective at buying the passage of initiatives.” This makes use of the process by narrowly defined special interests nearly impossible, unlike the legislative process.
The 1976 Colorado election was historic. Alarmed at the growth in the number of
Initiative petitions, opposition groups rallied to put a stop to it. Professor John S. Shockley tabulated that opposition spending exceeded proponent spending by over 10:1 on all issues combined. The opposition groups subsequently passed several laws restricting the petition process, several of which have since been stricken as unconstitutional. In 1996 when petition defenders attempted to protect petitions from continuing attacks by the General Assembly with the Petition Rights Amendment, opponents raised over a million dollars to perpetrate false campaign claims and defeat the measure.
In her new book, “The Populist Paradox,” Professor Elisabeth Gerber neutralized left-right ideological issue bias by aggregating all ballot measures in eight states over the period 1988 through 1992. Gerber found that 61 percent of all money spent in Initiative campaigns appeared on the opposition side. Gerber further found that 74 percent of opposition funding came from economic, professional, and business interests, the very same groups that are highly organized and well funded to affect favored outcomes at the state capitols. Regarding referred measure campaigns, Gerber further discovered that 70 percent of the funds came from the same groups who opposed initiatives and that 98 percent supported the measures drafted in the state legislature.
As measured by their spending, it can be concluded that those who work the Capitol like referred measures, but do not like Initiatives.
WHEN IS GOVERNMENT INTRUSION PERMISSIBLE?
The decade-ago collapse of Communism reminds us that political change comes in only two possible forms: violent and nonviolent. Though more lives would have been lost had Soviet troops been willing to fire on unarmed civilians, the transformation of Eastern European countries could have been less violent. Fewer lives might have been lost if the system had been open to continuous, gradual, peaceful change. However, it is not the nature of totalitarian systems to be open. Systems of democratic government, on the other hand, should be different.
But even in a democracy it is unrealistic to expect the status quo to reform itself out of existence whenever the need arises. The Initiative petition was invented as a pressure release valve to implement structural changes to the system peacefully. The Progressives used the petition as their tool to advance the remainder of their structural reform agenda (a partial list of their reforms is provided in the Special Interests section above). Term limits, tax limits, and campaign spending limits are current examples of structural changes that would be impossible without the petition.
In the Insubordinate Legislators section the view of the Court was mentioned: reasonable regulations to facilitate and augment the process far permissible; restrictions are not. When governments regulate petitions, they find themselves in an awkward position, at best.
Non-mandatory advice from government and other experts is desirable. Intrusion occurs whenever a government is in a position to exercise veto or approval power over a Petition. Some commonly observed intrusion points are: drafting of the scope, drafting the title, drafting a summary, estimating fiscal impact, determination of single subject, determination of Constitutionality, approval of petition format, drafting of voter information guides, and the counting and validation of signatures. Space does not permit discussion of each of these potential abuse points. Most people involved for the government are astutely aware of the inherent problems and work painstakingly in pursuit of fairness and objectivity. Unfortunately not all people are able to hold their personal biases in check. Minor rhetorical variations that might have devastatingly fatal consequences to a campaign or to the ultimate meaning of a proposal should be made only by the proponents. Anything otherwise, jeopardizes altogether the fundamental idea of the Initiative petition.
The rationale for intrusion is to protect voters from abuse and manipulation by overzealous proponents. This concern fails the logic test. It pre-supposes that someone is better able to screen for the truth and to objectively recast the message for public consumption. It also assumes that the election mechanism itself is an inadequate check against manipulation and deceit. These are both false, at least most of the time. But even if they were true, both thoughts are fundamentally undemocratic and bring to mind the famous Thomas Jefferson quote, “Men by their makeup are naturally divided into two camps; those who fear and distrust the people and wish to draw all powers from them into the hands of the higher classes, and those who identify themselves with the people, have confidence in them, cherish and consider them the safest and most honest, if not always the wisest, repository of the public interests. These two camps exists in every country, and, whenever men are free to think, speak, and write, they will identify themselves.”
There should be no doubt that an increasingly restrictive and closed petition process increases the risk of violence in America. Abraham Lincoln once advocated a national Referendum to reconcile the slavery issue. It is impossible to known whether the Referendum might have been effective in avoiding the Civil War, saving hundreds of thousands of American lives and immeasurable human suffering. But we do known the result without the Referendum and one cannot help but wonder, what would have been lost to have tried?
WHAT IS A CONSTITUTION?
A constitution is a written document of the people. It is the means by which the people agree to come together and operate as a civilized society. In so doing they define the structure of their government, establish separation and balance of powers between branches, and create limits. Clearly the entities created by the constitution are subordinate to it and may take no unilateral action to modify the constitution or to otherwise change its meaning. Such actions by any branch are grossly insubordinate and subvert the constitution, the process by which the government was created, the notion of sovereignty and the foundations for democracy. Only the sovereign people may make such changes.
“Natural” rights, sometimes called individual rights or fundamental rights, because they exist naturally, cannot be given or taken away by action of government. They should be itemized in the constitution in an un-amendable form. The primary reason for governments to exist is to protect and defend all “natural” rights for all of the people. Although a listing of “Natural” rights cannot be all-inclusive, the listing is important to facilitate their aggressive defense.
If the branches of government are separate and equal, then none is superior to the other. Thus, no branch is empowered to overrule another, when they are in dispute. A viable constitution must provide a means of reconciling such disputes. Disputes that cannot be resolved, probably necessitate action by the sovereign people.
Because the people may wish to modify either the structure of their government or the limits, a functional amendment process must be an integral part of any viable constitution.
A constitution for democratic government must:
1. Offer a list of “Natural” rights.
2. Establish the structure of government, including separation and balance of powers.
3. Define governmental limitations.
4. Include a method of reconciling disputes between the branches.
5. Provide a functional method of constitutional amendment.
A constitution that lacks one or more of these elements, may serve to provide civil society for a period of time. But lacking a key element, a constitution will eventually become dysfunctional and destructive to society. Once this occurs it may be necessary for it to be totally abandoned or replaced.
DYSFUNCTIONAL CONSTITUTIONS
The U.S. Constitution lacks a viable amendment process. Three quarters of the states must ratify proposed amendments. The problem is the source of proposed amendments. The founders anticipated that most proposed amendments would come from the states. But because Congress is in a position to block state-proposed amendments, no conflict of interest issues are addressed and governmental structure questions are rarely addressed. No state-proposed amendments have ever been released for ratification. Of those proposed by Congress, there have been over 10,000 introduced, of which 33 have been released for ratification and 27 have been ratified. Of the 27, numbers one through 10 plus 27 were drafted by James Madison as the Bill of Rights. Only a few (12,19 & 22) of the remaining 16 deal with change in the structure of government.
Forty-nine states have made 399 applications for a Constitutional Convention. Yet Congress stonewalls both efforts to convene a convention or to develop systems that might make a convention unnecessary. Congress’ thirst for power may make it the most tyrannical, undemocratic institution in America. Thomas Paine wrote as though he know the Congress of today, “Men who look upon themselves as born to reign, and others to obey, soon grow insolent; selected from the rest of mankind their minds are early poisoned by importance; and the world they act in differs so materially from the world at large, that they have but little opportunity of knowing its true interests … ”
The Confederate Constitution corrected some dysfunctional parts. It prohibited omnibus bills, required a supermajority vote for appropriations, and removed from the control of Congress the process of proposing amendments, requiring that 25% of the states concur on a proposal to release it for ratification.
Legislators that work to subvert the petition process in I&R states are insubordinate. Are Legislators in non-I&R states any less insubordinate? Hardly! Their arrogance and contempt for democracy is shocking. Evidently they believe that the state constitutional flaw that fails to provide a viable amendment mechanism somehow empowers them to deny the people’s will when they so choose. Legislators in non-I&R states are obliged to bring important issues before the people for their consideration, including the state constitutional amendment process itself. In 1906 the people of Delaware voted in favor of I&R with 89.1%. With this mandate the people have been patiently waiting for over 94 years for their honest and responsible representatives to implement the process.
The words of the Founders are often relevant today. In his 1776 book Common Sense Thomas Paine wrote, “We may be as effectively enslaved by the want of laws in America, as by submitting to laws made for us …”
SUMMARY
1. Magna Carta established that government must be limited.
2. John Locke reasoned that the purpose of government is to protect the “natural” rights of individuals.
3. The American colonies put the ideas of self-government and people-sovereignty into practice.
4. The ideas of democratic theory properly replicate those commonly exercise in management theory.
5. Attacks on the petitioner process by elected officials are acts of insubordination, were worse.
6. Petitions typically represent issues impossible for legislators to resolve.
7. Special interest groups find the petitioner process less friendly than legislation by elected officials.
8. The most commonly heard complaints about petitions are simply not true.
9. Less than one in 1,000 of our laws is the result of a petition.
10. A middle ground is preferable between absolute Direct Democracy and absolute Indirect Democracy.
11. Petitions help elected representatives to be more responsive and democratic.
12. Petitions increase voter turnout.
13. Voters are better informed on issues than they are about most candidates
14. Money is used most substantially by opponents to defeat petitions.
15. Government involvement in the petitioner process should be advisory only.
16. A Constitution is the people’s tool for defining and limiting their government.
17. A Constitution is dysfunctional when it lacks one of five major features.
18. Elected officials who refuse to correct dysfunctional Constitutional features are as insubordinate as those who seek to destroy the Constitution.
CONCLUSION
In all of human existence, life was mostly dictated by brutes. The comparatively recent invention of democracy has proven effective. Both human rights and economic freedoms have never been greater and are greatest where democratic processes are most evolved. The capacity of democracy to redefine itself is one of its most important aspects. Every time that democracy’s meaning has been questioned, the former definition was discovered to be too limited.
The U.S. may have suffered its darkest hour extending freedom to all races. But America’s largest war was insufficient to reconcile gender voting rights. This natural extension of democracy took another 48 years to achieve. But these, along with the civil rights movement of the 1960s, are only the best-known examples. Didn’t the Bill of Rights enlarge democracy? And the 12th Amendment that took selection of the President away from Congress? And what about the 19th Amendment that made U.S. Senators elective? And the 22nd Amendment that imposed term limits on the President? And didn’t many of the Progressives’ issues help to expand democracy: secret ballots, primary elections, voter registration, home rule, no straight party ballot, recall petitions, and Initiative and Referendum petitions?
Only by actions of tyrants has democracy been temporarily rolled back. There are no examples in the world were democracy was first enlarged and subsequently rescinded by democratic action. A recent poll revealed that petitions were popular among people in every state, but were most popular in those states with the Initiative and Referendum.
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.
