Initiative and Referendum
are Essential Means of Keeping Government Power in the Hands
of the People
by Lino A. Graglia, Professor of Law,
University of Texas Law School
Mayor Shirley Spellerberg opposes adoption of the Initiative
and Referendum (I&R) in Texas because it would give power
to the "voters-at-large," a surprising position to
see openly expressed by an elected official. Her primary argument
is not substantive but technical, that I&R are inconsistent
with the guarantee of a Republican form of government in the
United States and Texas constitutions. The argument is invalid.
Twenty-four states have an I&R process, some have had it
for a long time, and it has never been held unconstitutional.
She says that "courts have thrown out many initiatives that
have been approved by the people." If so, it shows only
that the initiative process must include constitutional amendments
to protect government by the people from the danger of government
by judges. Consistent with her distrust of the people, Mayor
Spellerberg sees constitutional conventions as the "greatest
threat" to our liberties, apparently forgetting that our
federal and state constitutions are themselves the result of
such conventions and products of popular government.
The I&R are simply means of putting policy making power
in the hands of the people, of giving people an effective way
to assert control over their lives and the conditions of their
society. This nation was founded on the proposition, stated in
the Declaration of Independence, that government derives its
just powers from the consent of the governed. Government power
- the power to decide public policy issues - cannot legitimately
be exercised on any other basis.
The I&R enable citizens to exercise the governing power
that is rightly theirs. It is needed because the processes of
representative government may encounter obstacles or develop
defects that keep it from operating responsibly and responsively.
Specifically, the I&R were developed and needed because special
interests and the power of concentrated spending can sometimes
capture and control the electoral process or the votes of elected
representatives on certain issues. The I&R serve to ensure
that decision making power on those issues can be returned to
and asserted by the people.
The I&R are particularly needed in regard to constitutional
amendments. In the past several decades, the legislative function
- the power to make policy on basic social issues-has been increasingly
and quite improperly taken over by the courts. In the guise of
interpreting and enforcing constitutional provisions, judges
have regularly substituted their personal views on public policy
issues not only for the views of the people, but also for the
views of the people's elected representatives. The Initiative
has become absolutely essential as a means of countering this
judicial usurpation of legislative power. Government by judges,
which is to a large extent what we now have, is the antithesis
of the system of self government by elected representatives that
the United States Constitution and every state constitution was
designed to create.
Just as government by the people is the best form of government,
the only legitimate form, government by judges is surely one
of the worst. It has almost uniformly been disastrous in its
effects. For example, the Supreme Court of California once decreed
that the California Constitution requires the busing of school
children for school racial balance. It ordered that public school
students be barred from admission to their neighborhood schools
and transported to more distant schools because of their race,
a truly insane social experiment that has had disastrous consequences
wherever it has been tried. It is a perfect example of the kind
of foolish policy that could not and would not be adopted if
the choice were in the hands of the people, but can be adopted
if the choice is in the hands of judges far removed from the
consequences of the policies that they decree. The immense injury
this ruling would have inflicted on the people of California
was avoided only because the people of California were able to
overrule it by means of the Initiative. Another example is the
decision of California Supreme Court judges to abolish capital
punishment. The Initiative allowed the people of California to
reverse that decision by an overwhelming majority.
For various reasons, many judges in this country have adopted
views on many basic issues of social policy - for example, issues
relating to the prevention of crime and the prosecution and punishment
of criminals - that are diametrically opposed to the views of
the vast majority of the people. In the name of enforcing constitutional
provisions, they have imposed these unwanted views on the people,
often at great social cost. The Initiative is the only practical
means by which the people and legislators can protect the right
of democratic self government against this usurpation. The dictum
that uncontrolled power corrupts does not apply less to judges
than to other government officials. Judges face a constant temptation
to frustrate the democratic process whenever it produces a result
of which they disapprove. The Initiative serves to place a much
needed restraint on this temptation and to ensure that judicial
power is not entirely uncontrolled.
