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As a professional in the field of natural resources management for the past 28 years, I have observed cases where our resource heritage was protected and strengthened by the initiative process. Unfortunately, I have also seen cases where our resources have been degraded because the public-although their feelings were strong-was unable to make their wishes felt. I am referring to the usual cases of wilderness, wildstreams, conservation zoning, and such; but also to more urban situations, as airport noise impacts, siting of nuclear plants, and such.
Natural resource managers must be able to be objective and see all sides of a controversy. I feel that I have been able to do this, and do not consider myself radical in any sense.
I do recommend that the voter initiative become a national process.
MARVIN J. WHALLS,
UNIVERSITY OF TORONTO,
DEPARTMENT OF POLITICAL ECONOMY,
Hon. BIRCH BAYH,
DEAR SENATOR BAYH: Your letter concerning the proposed constitutional amendment on the voter initiative process arrived one day before I left for Washington to testify before the Senate Finance Committee on the Tuition Tax Credit Bill. I intended to see someone on your staff while in Washington, but did not have time to do so.
My friends in the Congress tell me that the Abourezk, Hatfield, Gravel bill is a "non-starter," and I presume (and hope) that it will not pass the Congress this year; but I also presume that the issue will come up again, and that your committee will again hold hearings on the proposal. When that happens I should like to be asked to testify, and would appreciate it if my name could be added to any list of possible witnesses that you may have in your office. I shall argue that the proposal is a monstrosity, and give as reasons those that the authors of the Federalist Papers would give were they present among us.
WALTER BERNS, Professor of Political Science.
EAST CAROLINA UNIVERSITY, DEPARTMENT OF POLITICAL SCIENCE, Greenville, N. C., January 30, 1978.
Senator BIRCH BAYH,
Committee on the Judiciary,
Subcommitte on the Constitution,
U. S. Senate,
DEAR SENATOR BAY HS
DEAR SENATOR BAYH: Thank you for your letter of January 6 inviting comment on S. J. Res. 67.
In my judgment the proposed amendment is not a sound one, for it is at odds with key theoretical premises of the American constitutional system. Our system of government is predicated upon the idea of representative government. That is, the duly elected representatives of the people through careful deliberation and reflection will produce laws which are rooted in consensus, accommodation, and harmony. A fair reading of The Federalist Papers, the key document in this context, will show that the Founders rejected the idea of absolute majoritarianism or government by plebiscite; rather, they stressed the charting of policy courses based upon consensus arrived at through the deliberative process. The deliberative process minimizes passion, attempts to accommodate minoritarian positions, and in the process produces a mature consensus. That is the basic symbol of the American constitutional system and the S. J. Res. 67, which would
facilitate absolute majoritarianism and government by plebiscite, runs strongly counter to it.
In addition, I would like to go on record opposing this measure because it seems to assume that legislation can be reduced to simplistic plebiscitary form. I do not feel that it can. Legislative problems today are frequently subtle and complex, and Congress, our duly constituted legislative authority through the deliberative process, is in an infinitely stronger position to produce sound legislation than are combative debates and struggles over plebiscitary mandates.
To supplement my arguments, I would commend to the Subcommitee the key study by Professor Willmoore Kendall and George W. Carey entitled "The Basic Symbols of the American Political Tradition" (Baton Rouge: Louisiana State University Press, 1970).
I thank you for the opportunity to be heard. If I can answer any additional questions, please contact me.
JOHN P. EAST, Profesor, Ph.D., LL.B.
PART 3.-CORRESPONDENCE AND STATEMENTS FROM ORGANIZATIONS
PREPARED STATEMENT OF JAMES A. SIGL, DIRECTOR, AMERICANS FOR
Mr. Chairman and members of the committee, people are the fountainhead of law. Our founding fathers have wisely established three branches of government with each branch to perform a special function and coordinate through a system of checks and balances. At no time was it intended for the Executive, Judicial or Legislative branches to dominate singularly. Who, then, must have the final say in matters of judgment and where does the buck really stop?
For the first two hundred years of United States history people have chosen to exercise their authority solely by a representative process. Now, the time has come for the citizenry to become directly involved in matters of their choosing and to establish a due process of law for the exercise of their decisions. The world stands at the brink of self destruction. America must again take the lead to show how Democracy can work to provide for peace and harmony among mankind.
Our elected or appointed leaders have at times been subject to human frailty which has given good cause for other nations to question our integrity and mistrust us. We must show the world that the American people mean no harm and can be trusted because even its highest officials submit to the overall authority of initiative-referendum. Dictatorship is for God alone, but if there is truly to be a dictatorship by the proletariat it must be exercised by initiativereferendum.
Rather than the violence and disruptive demonstrations which preceded our withdrawal from the recent great war, the voice of the majority of American people would have been better expresed by an orderly initiative process.
PREPARED STAatement of MATT SHERMER, DIRECTOR, AMERICAN REFERENDUM
Honorable members of the committee: You may not fully realize, at this time, that you are embarked-in these hearings-upon a study so historical in nature that we who live in the 20th Century cannot comprehend its significance. This, gentlemen, is the crowning glory of your political careers! To initiate the greatest leap forward in American democracy since the creation and signing of the Constitution is a signal honor. Someday, if you do your duty now, it will be fully recognized.
The incorporation of popular initiative in the national governmental process will insure the vitality and longevity of free and democratic government in these United States. It is the cement that can hold our people together against domestic adversity and foreign antagonism. Common voting on the common problems of the nation is the key to unity.
The bumper sticker, "Don't Blame Me-I Didn't Vote," is an indication of the negative mood of half the country today. Voting on issues can be the govern
mental technique required to bring these disaffected citizens back to the polls. The opportunity to vote on both candidates and vital national legislation affecting citizen's daily lives will turn the rising tide of mistrust of government and national leaders.
According to the magazine, "The Economist," (3/6/76) eleven democratic nations now conduct national referendums-Australia, Belgium, France, Denmark, Ireland, Italy, New Zealand, Norway, Sweden, Switzerland and the United Kingdom-the United States does not put issues to its people. However, the long and successful experience of three-quarters of our states with direct legislation augurs well for future use of initiative, referendum, and perhaps even recall... on the national level. That will be a great day for good government.
We, in the American Referendum Association, have been working toward that end for several years. Our proposed Constitutional Amendment for the right of referendum on domestic issues may be of assistance to you in developing a workable amendment. It is attached herewith. Additional material can be helpful in delineating the legal and constitutional basis for national initiatives on controversial legislation.
We fully support Senate Judiciary Resolution 67, and hope you will, too.
Senator JAMES ABOUREZK,
AMERICAN REFERENDUM ASSOCIATION, INC.,
DEAR SENATOR ABOUREZK: In the recent hearings on your bill for national initiatives, you requested advice on whether to include referendum in the legislation. And since I was not permitted to speak there, you may want to know the views of a person who has long labored for the right of referendum on domestic issues.
First, the term referendum is much more familiar to most Americans than the term initiative. The latter word has many meanings, the former only one: i.e. a popular vote on an issue.
Second, the combined concept of initiative, referendum and recall is thoroughly implanted in the consciousness of every citizen who ever went to civics class. The total association of the phrase is that of an improvement in democracy. It conjures up something that was good.
Third, the inclusion of both referendum and recall in your bill will bring the opposition out of the woodwork! This is absolutely vital to achievement of the publicity required for eventual passage. My many radio and television apearances in behalf of direct legislation were hampered by inability to find a debating opponent who would publicly state his actual abhorrence of the idea. If you include the horrendous recall provision in your bill, many Congressmen and Senators will proceed to make asses of themselves. And the public will thus be made aware that the amended S.J. 67 may well be the key to good government. There are other reasons, most of which were brought-out in the hearings, why referendum (at least) ought to be included. It was noteworthy that most speakers said it should be. Sincerely,
MATT SHERMER, Director.
CONSTITUTIONAL AND LEGAL BASIS FOR THE RIGHT OF REFERENDUM ON ISSUES:
The right of referendum is not at present written into the Constitution, but the constitutionality of national referendum is inherently implanted in the document. Article I, Section 1, states "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Referendum is not a power "herein granted," so one must go to the Tenth Amendment-"The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people." This leaves the people with the right of referendum.
While, we in the American Referendum Asociation, work for a more explicit Amendment to the Constitution (see attached), the Congress could act now to
conduct an advisory referendum on handgun-control or any other issue. Implicit in the duties of Congress is the duty to know what the country is thinking (and what it needs). An advisory referendum on gun-control would provide that information. The result of the vote would not be law, as is the case in an official referendum, but it would result in an almost irrevocable mandate to do what the majority of the electorate wants done!
In 1903, Oregon's use of the referendum method was attacked in the courts. A vote for street improvement in Portland was challenged on the grounds that direct legislation destroyed the state's republican structure of government-required by Article 4, section 4, of the U.S. Constitution.
The Supreme Court of Oregon ruled otherwise: "No particular style of government is designated in the Constitution as republican, nor is its exact form in any way prescribed. A republican form of government is administered by representatives chosen or appointed by the people . . . the initiative and referendum does not destroy the republican form of government . . . the representative character of the government remains. The people have simply reserved to themselves a larger share of the legislative power."
In Massachusetts, there was no constitutional provision for referendum, but statutory authorization did the job. The Massachusetts Legislature simply passed a law allowing public issues to be referred to the people. Congress could do the same, relying on eventual Supreme Court interpretation to support its action, or reject it.
There is much historical precedent and plenty of judicial decision to put national referendums on firm constitutional ground. But the ultimate argument perhaps lies in the writings of Jean Jacques Rousseau, whose ideas on popular Sovereignty abound in our Constitution. In 1762, he wrote: "... the legislative power belongs to the people, and can belong to it alone." Thus, the people merely lend this power to representatives, and can take it back in whole or in part. The referendum technique is truly a minor part of the whole. Congress would continue to enact 99 and 99/100ths of all statutes, and very occasionally the people (i.e., the electorate) could act on a domestic isue which vitally affects their well-being.
Regarding present-day use of the referendum system in national government, the most cogent argument is that a full generation of American farmers have been its beneficiaries. Since the '30s crucial questions concerning subsidies, cropcontrols and prices have been decided by direct majority vote of our agriculturists. So, in fact, we have had national referendums, but limited to a specific portion of the population. If an urban citizen were to start a citizen's suit for equal access to the referendum method, he or she could reasonably contend in court that it is discriminatory not to permit the entire electorate to vote on these, and perhaps other, national problems. The legal ground is there!
Governmental precedent exists in the current and successful use of referendums in England, France, Italy, Sweden, Denmark, Switzerland and Australia. More than three-quarters of all the states in the United States use some form of direct legislation. If it had not been for the introduction of initiative-andreferendum many state governments would long since have become obsolescent. By bringing the public eye to bear on issues, special-interest legislation and political corruption have been cut to manageable proportions in our states. The one important thing that you can say about the referendum system is that it works.
Addendum: On June 21, 1976 the U.S. Supreme Court reversed an Ohio Supreme Court decision upholding a landlord who claimed that a local referendum on zoning change was "an unconstitutional delegation of legislative power." The U.S. Supreme Court reasoned that a referendum was not a delegation of power. It said that: "Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create. In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature." N.Y. Times, 6/22/76.
"THE SENSE OF THE PEOPLE" OR THE NEXT DEVELOPMENT IN
(By Matt Shermer)
It seems that on January 3, 1861, in a last-minute effort to avert civil war, "... Senator Crittenden of Kentucky offered in the Senate a resolution, “That
provision ought to be made by law without delay for taking the sense of the people and submitting to their vote the following (Constitutional amendments to solve the slavery question by compromise) as the basis of a final and permanent settlement of those disputes that now disturb the peace of the country and threaten the existence of the Union.'"
Following full debate, the proposal to conduct a national referendum was defeated in the Senate by one vote! Little more than a month later the bombardment of Fort Sumter began-the Civil War was on.
Justice Lobinger wrote the epitaph: "What a chain of catastrophes might have been averted if the extremists of both sections could have been persuaded to accept and abide by the simple expedient of 'taking the sense of the people!''
It is of course impossible to know whether a referendum could have prevented the war, but it was a revelation to discover that the technique had even been considered by the Congress as a way out.
Representative government remains right for most Americans, but there is a definite and deep inner knowledge that something new must be added.
A political technique is required to maintain our system of representation and permit the people to participate effectively in national government. The required technique is referendum.
Defined as "... the submission of a law to a direct vote of the people," the referendum method is needed now to enable national government to keep pace with the comparatively recent maturation of the American electorate.
While we are not yet prepared, perhaps, to decide issues of foreign policy by referendum, there is ample authority, trend and evidence to foretell that the next development in American democracy will be referendum voting on domestic issues.
Congress can conduct an advisory referendum on any issue at any time, in regular or special election, with the resultant vote serving as mandate rather than law. Using present political means, the people can petition or press the Congress to hold a "public consultation" on controversial legislation, or, for that matter, on their right to put any national issue to referendum.
Failing that, a Constitutional Amendment would give the President, the Congress, or the people (by Legal Petition) the power to initiate referendums on measures previously passed by the Congress.
And failing that, a nationwide voluntary vote conducted by any reputable civic organization would be effective as mandate, and would inevitably achieve the force of law.
In referendum voting, the citizen's choice achieves quality in the final consensus without regard to the particular reason that determines his individual vote. Failing to comprehend all the ramifications of the law at issue, he may base his decision on what he thinks is good for his country, or his section of the country, or his industry, or, as occurs more often, what he thinks is good for himself and his family. The complexity of the social problem is met and comprehended by the multitudinous variety of approaches and levels of thought-or even lack of thought-that are registered at the polls. The individual choice may be informed, partially informed, ignorant, emotionally charged, passively interested, or totally predicated on the stand of a political party, civic group, street-corner opinion leader, engineer, scientists, representative or President. While individual opinion is the basic component in referendum voting, it is the consensus that counts.
Long-term experience of large municipalities, most states of the United States, and several nations, would recommend adoption of a Constitutional Amendment to institute the method for use on national issues. The following provisions might well be included:
The President of the United States, or the Congress, or both, could submit debatable or deadlocked domestic legislation to a referendum vote of the electorate.
A legal petition signed by 10 percent of registered voters in one-third of all the states would put a law passed by Congress to a referendum vote at the next regular election.
Emergency legislation, security measures and tariff or tax laws would not be subject to petition for referendum.
The federal government would print and mail to all voters an educative pamphlet offering pro-and-con facts and arguments on the laws at issue. All
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