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Mr. FISH. Unless the court found that that repeal was unconstitutional.
Senator HATCH. I think you are making a pretty interesting point which I had not thought about before. But then again this is pretty
Does it not also mean that if a group of citizens decided to repeal title VII of the Civil Rights Act that another group of citizens could take them right to court all the way through the 6-year process and they could enjoin the initiative to begin with? That means that we would always again be in court without any real resolution.
Mr. FISH. That's probably true or else they would challenge each signature in litigation.
Senator HATCH. So what you're saying is that not only could we have all kinds of legislative initiatives all over the country but we could have all kinds of litigation arise out of this by whatever special interest group does not like the particular language of the initiative petition; is that right?
Mr. FISH. I should think so. There could be litigation over signatures, and litigation over wording of the act as infringing on the Constitution. Even if the initiative did pass, and repeal were prevented by one-third plus one in Congress, then you conceivably could have a bill on the books for 2 years. Thereafter Congress repeals it and then the petition drive gets going again. Suddenly title VII goes down a couple of years later.
It seems to me, Senator, that there is an issue here that I had not mentioned before concerning certainty and predictability in the law. Senator HATCH. Le me see if I understand. If a group of citizens, whatever special interest group, decides to repeal, let's say title VII, and they start the initiative petition across America because this is law and we assume it's law.
Assume also that another group of citizens which does not want title VII repealed goes to court for an injunction against this type of petition. Assuming that they are unsuccessful and they get the requisite number of signatures and submitted them as a national vote and vote it up and down and title VII is repealed, then that means that Congress will have to reenact title VII and go through the whole process again.
Mr. FISH. Or they could defeat the repeal by two-thirds, the special majority required by Senate Joint Resolution 67 in the first 2 years.
Senator HATCH. Right.
Mr. FISH. This means that the converse of that is a one-third plus one minority could prevent the repeal.
Senator HATCH. Let's go another direction. Let's say that instead of repealing title VII that we have a bill that is really reprehensible but catches the imagination of the people because it is presented in such a way that they really buy it and they get the votes. There are injunctions brought in court and the injunctions do not succeed and the votes occur and the bill is passed. Then the Supreme Court can come in and we can go through the litigation process again. Somebody files against the Government on the basis that it is unconstitutional and it goes to the Supreme Court.
So what you are saying is that this is no simple method for the general populous or for the people directly to resolve legislative difficulties. It further lacks the compromise aspect that the Federal approach does have and that the representative government approach does have and that it lacks the aspect of being able to throw out various senators and congressmen if you disagree with them; is that right? You may be stuck with this bill no matter what you do.
Mr. FISH. You would be stuck with it for at least 2 years unless you had two-thirds support.
Senator. HATCH. You may be stuck with it forever because twothirds is hard to get.
Mr. FISH. Yes, there might not be a majority in Congress to overturn it.
I think it has serious problems. It's wide open and appropriations can be legislated upon and national security issues can be legislated upon. Fundamental rights of the people can be legislated upon. You can think of all the legislation that Congress has passed under the commerce clause. So one wonders whether this constitutional amendment is such a good idea.
Social scientists have studied the initiative, but they have primarily studied its operation in the Western States. They found that direct democracy generally tends to work in favor of so-called "liberal" causes. But coming from North Carolina, I'm not sure it's always wise to submit things to the people or that "liberal" products will always result. We perenially have liquor-by-the-drink referenda and the State Baptist convention mobilizes, and we vote down liquor by the drink. So the State of North Carolina has no service of mixed drinks in restaurants and of course no bars. I think a study of referenda in North Carolina would look a little different than that for the State of California or the State of Washington which are of course old progressive party citadels with Hiram Johnson, one of the great spokesmen of direct democracy, hailing from the former.
Regardless of which State is studied, little light would be shed on the use of the initiative in matters relating to international relations. As Justice George Sutherland, who came from Senator Hatch's home State of Utah, made clear in the landmark Supreme Court case of United States v. Curtiss-Wright, the power over international affairs never belonged to either the Colonies individually or to the States. Rather such power passed directly from the British Crown to the Colonies collectively first under the Articles of Confederation and later under the Constitution. Even if the locus of external sovereignty should be deemed "the people," it seems doubtful that they could or should conduct the international relations of this Nation by means of the initiative. They certainly cannot do that now in those States which have the initiative.
One of the things that Ralph Nader mentioned, which I thought important, was that the national legislative initiative might assist in the recruitment of political leadership. That is an interesting point. I do not know if it's true or not. It has not been true of nonpartisan elections which have not typically resulted in recruitment of leadership for political parties. I do not know whether it is true that there is a transfer, so to speak, between leadership of these
initiative_ campaigns and leadership in the established political system. I do not know of any research on that area.
Finally, let me comment on the assertion made by proponents of Senate Joint Resolution 67 that the legislative initiative accords with the constitutional right to petition for redress of grievances. I submit that this assertion completely misses the point. Read in the context of the first amendment of the Bill of Rights, the relevant sentence reads: "Congress shall make no law-abridging-the right of the people-to petition the Government for a redress of grievances." Originally a limitation on congressional power, it now applies to the States. Clearly, however, the clause is intended to prevent interference with the citizen's right to petition the relevant institutions of Government. It can hardly be construed to mean that by petitioning themselves the people may act as their own legislators in order to redress their grievances.
Senator HATCH. One of your major points, in fact your major point seems to be that this type of bill will be a conflict stimulant. Mr. FISH. A destabilizer.
Senator HATCH. Yes, and it could amount to all kinds of conflict all over the country in the courts, in legislatures, in Congress, and in the bureaucracy, I guess. Is that right?
Mr. FISH. I should think that if a proposal to repeal the Civil Rights Act of 1968 or even a petition campaign launched to do so, that would certainly not be conducive to a harmonious society.
Senator HATCH. In other words, what you seem to be saying concerns what Mr. Nader talked about when he said, "It's important that the ultimate check in a representative democracy is not revolution. The ultimate check is direct democracy."
Only what you are saying, Mr. Fish, is that direct democracy may not be a very good check and it may lead to revolution; is that right? Mr. FISH. Well, Senator, you think of instances in which minorities hav found protection from the majority in the Bill of Rights. One thinks of the Jehovahs Witnesses, American blacks, and political dissenters. One wonders how the antiwar people would have fared if the issue of free speech for dissent against the war had been put to a popular vote. I do not know but I would hate to see that kind of thing.
Senator HATCH. Isn't it also true that historically there are many illustrations where you go to a pure democracy and you ultimately wind up having a revolution rather than a representative solution to problems; is that right?
Mr. FISH. I just do not know to what extent there is a danger of majoritarian tyranny here. It's very hard to surmise because the resources needed to wage a national legislative initiative would require, I think, well-funded and intensely interested and highly organized groups to be able to pull off a petition campaign in the first instance.
Conceivably this could permit the unleashing of majority tyranny. It might, on the other hand, permit the unleashing of minority tyranny of one kind of another.
Senator HATCH. Whoever has the money and time effort?
Mr. FISH. Anyway you could have a conflict of severe dimensions.
Senator HATCH. So the very things Mr. Nader is talking about, that is that this would give the people more of a voice, might involve even more private interest controls; is that right? It will be those who have the time and the drive and the money and the effort to get the initiative petitions across the country.
Mr. FISH. Conceivably. It depends on the issue. If it's a highly emotional issue, unpaid volunteers in large numbers might be recruited for it.
On economic issues, let's say the right to work legislation, the turnouts are pretty high in State initiative elections.
Senator HATCH. I brought this up yesterday. Only 20 percent of the country's work force is unionized. There are a lot of people who do not like the big union movement. That could be very detrimental to the union movement in America if those people decided to do away with a number of the labor laws which really have been justified on the books to establish the right of free collective bargain
Mr. FISH. Sure. I should think the National Labor Relations Act could be up for grabs. There are no prohibitions on what the sponsors of legislation could seek. Other than those respecting the declaration of war and self-defense.
Senator HATCH. Personally I like conflict stimulation, but you seem to be saying that we have enough of it in the Congress and in the media telling what Congress is doing so that in our representative form of government that is where the changes should be made. Mr. FISH. Yes.
The conflict is institutionalized in the legislative process.
Mr. FISH. Mr. Nader has certainly appeared here often enough. He is fully familiar with the operations of Congress and the regulatory agencies.
Senator HATCн. Thank you.
A copy of your written statement will appear in the record at this point.
[The prepared statement of Mr. Fish follows:]
PREPARED STATEMENT OF PETER G. FISH, ASSOCIATE PROFESSOR OF
The legislative initiative under consideration by the Subcommittee is a hoary reform proposal which seems to emerge from the political closet in the wake of political scandals. As the Progressives in days of yore were consumed by what they perceived as rampant robber-baron-induced corruption of the American political system, so too contemporary reformers, such as Senator Abourezk, are concerned wtih the misdeeds of our public servants in both the executive and legislative branches. Their conduct has led, states the South Dakota Senator, to "a growing dissatisfaction, and in many cases a serious distrust, of Government by the very people who are its source of power and who elect its leaders." (Congressional Record, July 11, 1977, p. S11582). American citizens feel alienated from their political system and helpless to affect its operation.
Then as now, the remedy proposed for curing this affliction of political anomie is more democracy. The elixir of political life at the moment is the legislative initiative. Tomorrow it may be the constitutional initiative or some other allpurpose reform from the old Progressive grab bag. Place power in the hands of
the people, elude traditional political channels of the legislature and executive veto, and the established political institutions will be truly controlled. The people will reign as sovereign.
All direct democracy antidotes for the ills of government raise in stark form the perennial tension between, on the one hand, the liberal or constitutional doctrine that governments are established to protect certain fundamental rights and that their powers should be confined by specific restraints and the democratic doctrine, on the other, that sovereign power is derived from the people's consent and that popular participation serves to legitimize government. The more such popular participation, the more the people rule and the closer the proximation to true democracy.
As the Federalist Papers demonstrate, however, the Founders of this nation's political system, a system which has endured through times of war and peace, plenty and scarcity, clearly rejected majoritarian democracy. As James Madison put it so well in Federalist 51:
"But what is government itself, but the greatest of all reflection on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
To the end of governmental self-control, Madison argued in 51 for "so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." Thus, as adopted in 1789 and further developed thereafter, a nonmajoritarian constitutional system of checks and balances, Madisonian democracy emerged. Its ingredients included the indirect election of the President, direct election of Representatives and, later, of Senators-all three from different constituencies; bicameralism, presidential veto power; congressional impeachment power and removal; presidential appointing power and senatorial confirmation power; presidential treaty negotiation and senatorial consent, differing House and Senate terms; and the two-stage constitutional amendment process. Subsequently, judicial review and decentralized political parties developed.
But Madisonianism rested not alone on the interior structure of government, but on exterior conditions as well. It depended on a theory of representation which Madison regarded as the distinguishing mark of republican government. As Professor Robert J. Morgan emphasized in "Madison's Theory of Representation in the Tenth Federalist" (37 The Journal of Politics (1974), 952-85), Madison thought the advantage of a large as contrasted to a small republic lay in the recruitment of representatives from large, heterogeneous districts. Consequently such public servants were likely to be independent of any single interest. With such representatives "Congress would more probably by insulated from localized factional struggles normally occurring in some districts." The fabric of federalism would thus differentiate the function of representatives. Those chosen to serve in the nation's capital would serve the "aggregate interests" of the nation. Those selected for service in the state capitals would be chosen to represent local, even parochial, interests. (Ibid. at 860-61) Further, he asserted that though the size of the electorate might be large, the size of the legislature should be small. A well-proportioned assembly would secure the benefits of "free consultation and discussion and assure the supremacy of reason over passion." Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob." (Ibid. at 864) A balanced government in terms of both the interior structure of government as well as in terms of representation fostered stability of the political system, the stabiltiy of which in turn depended chiefly upon the stability of the legislature.
As America approaches the bicentennial of the oldest written and still functioning Constitution in the world, do we wish to destabilize a rather fragile political system which has received harsh assaults in recent years? Do we wish to bypass the Madisonian foundation of our Constitution in favor of direct democracy in a modern nation of more than 200,000,000 citizens?